House Judiciary Committee Chair Barry Usher, R-Billings.
The House Judiciary Committee heard a bill Wednesday that would make a small technical change in state’s death penalty law — but would have a big effect by allowing the state to continue administering lethal injections.
House Bill 244 would remove the requirement that drugs used for lethal injection must be “ultra-fast acting” barbiturates and make it lawful for the state to use “any substance or substances in a lethal quantity sufficient to cause death.”
A 2015 court decision handcuffed the Montana Department of Justice by ruling the drug it was using during executions, pentobarbital, was not an “ultra-fast acting barbiturate” — making executions unlawful under current state law.
Montana is one of 28 states that allows the death penalty, but is the only state that requires the barbiturates used to be ultra-fast acting. It has performed three executions since 1976 and has two people on death row.
The bill’s sponsor, Rep. Dennis Lenz, R-Billings, said the legislation was based off of wording from Texas and Florida state law. “This is a simple bill that addresses a simple line … but this subject is not simple.”
Those who testified against the bill, including the American Civil Liberties Union of Montana and the Montana Innocence Project, said while the bill only proposes a small technical change, it would have grave and lasting consequences. They also questioned its legality.
Sam Forstag, with the ACLU of Montana, said during testimony that the broad authorization of what drugs the state can use would create a whack-a-mole of lawsuits about the constitutionality of each drug the state tries.
“It will not make us safer. And, in fact, it will result in a legal battle that costs our state and our taxpayers more money than we ought to impose on them,” he said.
On behalf of the Montana Innocence Project, SK Rossi pointed to the hundreds of people on death row who have been exonerated as a reason the committee should table the bill.
“Functionally, this is a small change of the statute … but the impact broadly is much greater,” Rossi said. “And I think that should be considered a yes vote for this as a yes to reinstate the death penalty.”
Attorney General Austin Knudsen said during testimony the drugs that meet the high standard of “ultra-fast acting” are no longer available, and the technical change would free the DOJ to lawfully carry on with lethal injections.
“What we’ve got is a situation in the state of Montana that while we have had the death penalty legal on the books for years, we have not technically been able to execute anyone since 2015,” he said.
Knudsen was joined by a handful of county attorneys, the Montana County of Attorneys Association and the Montana Police Protective Association, all testifying in favor of the bill. Many echoed the argument that the bill provides a needed technical change.
Lenz and Knudsen also argued that the judge’s decision in the 2015 ruling included a directive to the legislature to change the wording of the law, an assertion Forstag disagreed with.
“The State’s remedy is to ask the Legislature to modify the statute to allow the use of pentobarbital or other slower acting drugs,” District Court Judge Jeremy Sherlock wrote.
In a letter to the committee, Forstag said the “state” mentioned in Sherlock’s decision refers to the Office of the Attorney General, who was a party in the case. “Any effort to construe this as a directive from the Judiciary to the Legislature to enact such a radical expansion of how Montana permits prisoners to be executed is specious at best, disingenuous at worst.”
While the testimony was relatively mild, the hearing was not without drama.
Committee chair Barry Usher, R-Billings, instructed that people stay on the topic of the bill.
“Our discussion is not about the death penalty. It is about the fast-acting barbiturates,” he said.
The testimony of Matthew Brower, executive director of the Montana Catholic Conference, was interrupted by Usher when he said the bill would facilitate the killing of people.
“I know we all want to grandstand on both sides of the death penalty, but that’s not what this bill is about, and we will have that day. We have that day coming,” he said, likely referring to a bill to repeal the death penalty sponsored by Rep. Ed Stafman, D-Bozeman.
Brower ended up submitting his testimony in writing saying it would “certainly run afoul of what the chair believes is appropriate for today’s hearing.”
Virtual testimony from Donna Williams was also interrupted. “…I’ll just tell you that you’re not really being honest with yourselves, because this bill is about the death penalty,” she said before being muted by Usher, who said he wanted to give her a moment to think about the direction of her testimony.
Democratic Rep. Laurie Bishop from Livingston said she did not agree with the rules set forth by Usher.
“We are looking at a bill in its title, providing that death must be caused, and yet we prohibited testimony .. talking about people dying,” she said. “For all the lines that you’ve been trying to brightly draw today, that felt odd to me, and I wanted to address that.”
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