Bill that would reinstate Montana’s death penalty passes House vote

The proposal would remove language in state law requiring an “ultra fast acting” lethal injection drug

By: - February 16, 2021 3:30 pm

Death penalty illustration (Illustration by Pics4Free CC BY-SA 3.0)

Montana is on track to resume capital punishment for the first time since 2015 after lawmakers in the House gave preliminary approval to legislation loosening requirements for lethal injections in the state.

The House passed HB244 on second reading 56-44, the penultimate hurdle before the bill moves to the Senate. The proposal, carried by Rep. Dennis Lenz, R-Billings, would strike language in state law requiring that the chemical cocktail used in lethal injections contain an “ultra fast acting barbiturate,” a move opponents warn would allow unregulated substances to be used in executions by the state.

The bill replaces that language with a requirement that the state use a substance “sufficient to cause death.”

Executions in Montana have been on hold since 2015, when Lewis and Clark County Judge Jeffrey Sherlock ruled that the barbiturate the state had been using, pentobarbital, did not comply with statute, as it took minutes to kill — hence, not “ultra fast acting.” The state’s last execution was in 2006, the third since the practice was reinstated in 1976.

Lenz said he took that ruling as a prerogative to change statute in order to comply with the court’s decision, allowing capital punishment in Montana to continue. The legal structure for the death penalty in Montana is already in place, he said; this bill merely clears up “technical issues” that have prevented the practice for the last five years.

Republicans have sought to prevent debate on the bill from becoming a broader referendum on the death penalty.

“We haven’t been able to use Montana’s death penalty that we have in law because of this little thing,” said Rep. Derek Skees, R-Kalispell, in debate on the bill Tuesday. “That’s the real reason the Democrats are against it, is because when we fix it, the death penalty comes back on in Montana.”

But explaining the bill as a change needed to bring statute into compliance with a court order belies the ramifications of removing the “ultra fast acting” requirement, opponents say.

That language is in statute because “it was thought at the time that that was the most humane way to kill someone,” said Rep. Ed Stafman, D-Bozeman. “This bill would eliminate that language, and replace it with any lethal substance or substances. No limitations, it could be an experimental drug, it could be a particularly cruel or painful drug. It doesn’t have to be approved by the (U.S. Food and Drug Administration) or a doctor. Anything goes.”

Lenz has pushed back on that suggestion, arguing during the bill’s committee hearing earlier in February that he didn’t think “anyone at the prison is going to be grabbing a jug of anti-freeze and killing somebody with it.”

The Department of Corrections’ written protocol for lethal injections — protocol that, as Stafman pointed out, isn’t law and is subject to change — stipulates that pentobarbital can be replaced with sodium penothal if the former is unavailable. If neither are available, “an appropriate drug will be determined and used as a replacement,” the protocol states.

“Prison officials decide on the drug, decide on the dosage, insert the needles, there are no limitations,” Stafman said.

Other objections to the bill relate to the cost to the state of resuming lethal injections. A fiscal note from the governor’s budget analysts estimated that each execution could cost the state around $100,000. This isn’t including the potential costs stemming from litigation against the state, which budget analysts say could exceed $400,000.

“In sum, this bill makes the death penalty process crueler, longer, and will inevitably lead to another years-long legal battle,” Stafman said. “This is not a technical issue. Torture is not a technical issue.”

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.