HELENA — Montana lawmakers conducted a hearing Wednesday on a bill that would give the state the ability to resume executions through lethal injection, by changing the legal description of the drug it must use in the procedure.
The House Judiciary Committee heard testimony on House Bill 244, sponsored by Rep. Dennis Lenz of Billings.
Since 2015, the state has effectively been unable to administer the death penalty. State law requires that the Montana Department of Corrections use an “ultra-fast-acting barbiturate” as part of its procedure for giving a lethal injection. District Judge Jeffrey Sherlock, of Helena, ruled that pentobarbital – the drug the state was planning to use – did not meet that requirement, and he blocked the state from using it “unless and until the statute authorizing lethal injection is modified in conformance with this decision.”
HB 244 would make a change in that statute, allowing the state to use “an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death.”
The bill was backed by Montana Attorney General Austin Knudsen, who said Montana is the only state in the country that requires an “ultra-fast” barbiturate. He said the companies making the three drugs that fit that description either stopped making them or refused to export them to the United States for use in executions. He argued Sherlock’s ruling made clear that the Legislature could change the statute to more general language, giving the state the option to use other drugs.
Knudsen said HB 244 mirrors current law in Texas and Florida, which have been conducting executions using different drugs. He argued it was the best option to withstand legal challenges.
“The language you see in front of you is what we believe is going to give us the strongest legal position to defend that and actually be able to carry out the will of this Legislature, in carrying out capital cases,” he said.
Montana currently has two prisoners sentenced to death: Ronald Smith and William Gollehon. Both men were plaintiffs in the lawsuit that led to Sherlock’s ruling against the use of phenobarbital, and both are currently held at the Montana State Prison.
HB 244 also drew support from a number of county attorneys, including Marty Lambert of Gallatin County. Lambert is currently seeking the death penalty against Patricia Batts, a West Yellowstone woman accused of torturing and murdering her 12-year-old grandson.
“If we’re going to have the law on the books, ladies and gentlemen, the state needs to be able to carry it out,” he said.
Opponents of HB 244, including the ACLU of Montana and the Montana Innocence Project, argued the bill was too broad, and didn’t provide enough assurances that whatever execution method the state used would be painless.
“Such a broad, ambiguous statute to direct the gravest possible action that our state could take abdicates responsibility for what we are asking our civil servants to do, and it does not resolve the underlying issues,” said Sam Forstag, legislative program manager for the ACLU of Montana.
Knudsen said the state already has procedures that will ensure any future execution method will be humane. He said making the bill narrower would put them at the risk of another drug becoming unavailable.
“The specificity is what got us in trouble in the first place and has run us afoul of the courts,” he said. “That really is the reason not to be specific here.”
But SK Rossi, representing the Montana Innocence Project, said previous Legislatures had made the law specific for a reason.
“The fact that the Attorney General’s Office and the Department of Corrections, in moving the death penalty forward, are running afoul of the specificity of that statute kind of illuminates the problem,” Rossi said. “The specificity of an ultra-fast-acting barbiturate was to make this the least painful process possible. The specificity is necessary.”
During Wednesday’s hearing, committee chair Rep. Barry Usher, a Republican from Billings, asked those testifying to keep their remarks focused on the specifics of HB 244, and not on arguments for or against the death penalty. He said those discussions should be kept until later in the session, when he expects a bill to repeal the death penalty to be introduced.
Rep. Ed Stafman, a Democrat from Bozeman, has already requested a repeal bill.
According to the Montana Department of Corrections, the last time the state executed a prisoner was Aug. 11, 2006, when David Dawson was put to death.