HELENA — For the third session in a row, Montana lawmakers are considering a bill intended to allow the state to again administer the death penalty.
Montana has been effectively unable to conduct executions since a 2015 court ruling. On Tuesday, the House Judiciary Committee heard testimony on House Bill 205, which would change the requirements for lethal injections, with the goal of allowing the state to resume carrying them out.
State law currently requires that the Montana Department of Corrections use an “ultra-fast-acting barbiturate” as part of its procedure for giving a lethal injection. In 2015, District Judge Jeffrey Sherlock, of Helena, ruled that pentobarbital – the drug the state was planning to use – did not qualify as “ultra-fast-acting,” and he blocked the state from using it “unless and until the statute authorizing lethal injection is modified in conformance with this decision.”
Leaders have said the state hasn’t been able to get drugs that meet the current requirement – in part because many companies outside the U.S. are unwilling to export them for use in executions. HB 205, sponsored by Rep. Shannon Maness, R-Dillon, would remove the “ultra-fast-acting” language and instead allow the state to use “an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death.”
Lawmakers considered almost identical bills during the 2021 and 2023 legislative sessions.
In 2021, the bill passed the House before falling two votes short in the Senate.
In 2023, it began in the Senate and failed on a tied vote on the floor.
Besides Maness, no proponents spoke in favor of HB 205 during Tuesday’s hearing. However, Attorney General Austin Knudsen’s office said he wasn’t able to attend the hearing but is in support of the bill.
Knudsen previously endorsed this change, including in 2021, when the bill was introduced at his request.
Opponents of HB 205 said the language was too broad, and didn’t guarantee that whatever lethal injection protocol the state came up with would be painless.
Alex Rate, deputy director and legal director of the ACLU of Montana, said it would open the door to legal action every time the state tried a new method.
“If this legislature wants to see the capital punishment struck down by the courts as unconstitutional once and for all, this is exactly the bill to do it,” he said. “Administering antifreeze or rat poison or cyanide in a sufficient quantity to cause death is the definition of cruel and unusual punishment.”
But Maness argued the constitutional protections already in place against cruel and unusual punishment ensure that the state won’t use unreasonable substances for executions. He said keeping the language general was the best chance at actually allowing executions to move forward.
“If we limit it again to something specific, we're going to be right back in this if we run into the same problem where the products are no longer available,” he said.
Eric Strauss, deputy director of the Montana Department of Corrections, spoke as an informational witness – neither supporting nor opposing HB 205. He said the department hasn’t yet considered specific “drug cocktails” that they plan to use for lethal injections.
“Our protocol does require us to contract with a qualified medical professional in the development of that cocktail,” he said. “So in the event that the moratorium would be lifted based on the changes to the statutory language, we would again have to engage with a medical professional to determine what the appropriate drugs are to use.”
Montana currently has two prisoners sentenced to death: Ronald Smith, first sentenced in 1983, and William Gollehon, sentenced in 1992. 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 in Deer Lodge.
The last time the state executed a prisoner was in 2006, when David Dawson was put to death at MSP.
