Restraints are shown on the lethal injection table in the execution chamber at the Utah State Correctional Facility on Aug. 8, 2024, in Salt Lake City. (AP Photo | Rick Bowmer, Pool)
Rat poison, drain cleaner and Diet Pepsi were all tossed out — some repeatedly — as ways Montana could get around a decade-old court ruling that found none of the current drugs available for lethal injections met with the legal standards of Montana, which requires “ultra-fast acting” drugs for death.
Montana Rep. Shannon Maness, R-Dillon, carrying House Bill 205, is proposing that Montana could maneuver around the court decision by changing the wording of the law, striking the requirement that the drug or drugs administered be “ultra-fast acting,” providing instead that the injection would simply cause death.
However, that change brought concerns from fellow lawmakers and the American Civil Liberties Union of Montana, which called it a “poster child” for litigation, if passed.
Opponents of the change also pointed out that in addition to forbidding cruel and unusual punishment, the Montana Constitution also has a provision for the dignity of all human beings, which dictates how the state can execute prisoners facing the death penalty.
No one except Maness spoke in favor of the bill. Maness urged his fellow lawmakers to pass the change to begin resuming lethal executions in Montana, even after American manufacturers of pentobarbital have discontinued production and the European Union prohibits drugs to be exported to further lethal injection.
Other lawmakers during the Tuesday testimony before the House Judiciary committee raised concerns about the cost of acquiring drugs for lethal injections, while other raised concerns about the cost of litigating a death-penalty case, if the law is passed.
Calling the proposal “brutal and barbaric,” Alex Rate, the legal director and deputy director of the ACLU of Montana, said that other court cases would caution against lowering the threshold for the drugs, including a 2003 court decision that eliminated some behavior modification programs administered through the Montana Department of Corrections because they were considered cruel or unusual.
At times during the hearing, lawmakers sought answers to what other forms of executions could be considered legal, which led to a discussion of different methods ranging from stoning in Saudi Arabia to the guillotine in France.
“If the Legislature wants to see the death penalty struck down by courts once and for all, this is exactly the bill to do it,” Rate said. “Antifreeze, rat poison and cyanide in sufficient quantities is the definition of cruel and unusual.”
Though House Judiciary Chairwoman Amy Regier, R-Kalispell, tried to corral the comments to just the topic of the bill instead of a larger discussion of the death penalty, the public testimony inevitably fell back to the merits of the legal executions.
Jasmine Krotkov, a former legislator and a religious Quaker, said that she was opposed to the very concept, regardless of the drugs used. Two other members of religious organizations spoke, including a representative of the U.S. Roman Catholic Bishops Conference, which opposes the measure because of its belief in the sanctity of life.
Rev. Susan DeVree, a retired pastor and rancher from Helena, spoke in opposition to the bill, even though her oldest child was murdered 35 years ago.
“This bill is a way to open the door to the concept that we are killing people as a way to teach people that it’s wrong to kill people,” DeVree said.
Don Cape, of the Coalition for Safety and Justice, said that his group is not necessarily opposed to the death penalty, but is concerned about nothing specific in state law that says what kind of drugs can be used, if HB 205 passes.
“This bill is fatally flawed because there are no guardrails about what is administered,” Cape said. “A new formula could be subjected to a court challenge and that could take 10 to 15 years at the cost of millions of dollars.”
Cape also advocated that state-sanctioned executions, often done in front of a very limited audience, should be public.
“Look at the methods and public executions,” he said. “Let’s see what the death penalty is and the deterrent of seeing the death penalty instead of being hidden away in such a manner that we are using the same tactics as the person we are attempting to execute because of a murder, in secret like they did. I would ask you to either change the method or refer to for further study.”
Amy Sings In The Timber, with the Montana Innocence Project, also spoke to the irreversibility of the death penalty, and noted that since 1989 more than 3,600 people have been exonerated nationwide of felonies, and more than 200 of them were death-row inmates, including one in Montana.
Maness defended the legislation, saying the state’s Constitution already prohibited cruel and unusual punishment, so he believes it would be redundant to add guardrails to the legislation, saying instead that allowing more latitude was a way to restart executions.
“If we limit it to be something specific, we’re going to be right back in this,” he said.
Rep. Ed Stafman, D-Bozeman, asked what drugs are available to the state that would allow lethal injections to resume.
“I do not know,” Maness said. “That’s not really what it’s stating. It’s stating that the Department of Justice or whatever department can use the drugs that are available at the time.”
While the Department of Justice through the Attorney General’s Office may prosecute capital cases, where the death penalty is involved, the Department of Corrections would be the administrative department charged with carrying out an execution — something the state has not done since 2006.
Other legislators asked whether there was evidence to prove that the death penalty was a deterrent.
“There is no evidence to support it,” said Robin Maher of Death Penalty Information Center.
She said her organization tracks many different aspects and policies related to the death penalty, including academic studies.
“There is no empirical evidence that it provides a deterrent against future crimes,” Maher said.
In addition to legal costs, lawmakers also questioned the cost of acquiring the drugs that would be used for a lethal injection, as well as the people who would administer it.
Department of Corrections Deputy Director Eric Strauss said that the last time the state executed a person, nearly 20 years ago, the drugs cost more than $100,000. However, executions in others nearby states, including Idaho and Utah, the price has soared to more than $200,000.
However, lawmakers also raised concerns about how those drugs were obtained, and who would administer them.
Maher said her organization had documented more than 100 cases of botched executions. She also raised questions about the currently available drugs, or any drug in a lethal dose, would be met with legal and medical challenges.
“There is significant uncertainty about whether the drug would cause pain and suffering,” she said. “Drugs can expire and drugs can degrade over time. And we don’t know if drugs are obtained via a sketchy source.”
Strauss told lawmakers that Montana law does not specify who must administer the lethal injection and does not mandate a doctor. In fact, the appropriate or necessary medical staff that must be present is also not mandated by law.
Strauss also told lawmakers because of the unavailability of drugs termed “ultra-fast,” the state has not checked to see the prices or even availability of the drugs.
“Cost is really the least of my concerns on this,” said Rep. SJ Howell, D-Missoula. “There will be significant cost, and also the legal cost associated with this would be another thing to consider.”
Maness said the purpose is to not get “pigeonholed” by the courts again, and he said he believes that Department of Corrections has the expertise to find the right cocktail of drugs.
“We can get out of the hole we’re in and get back to executions in this state,” he said.
The committee did not take immediate action on the bill.