HELENA — The state has asked a judge to back the changes it made to its lethal-injection procedures and dismiss the claims of two death-row inmates and a civil-liberties group that the revisions still put condemned prisoners at risk of unnecessary suffering.
The American Civil Liberties Union, Ronald Allen Smith and William Gollehon are rehashing old arguments and improperly bringing up new ones in asking District Judge Jeffrey Sherlock to rule the execution changes unconstitutional, Assistant Attorney General Mark Fowler said in Friday's filing.
The changes made in January by the Montana Department of Corrections were done to address the clearly defined constitutional concerns Sherlock stated in a September order, Fowler said.
The biggest revisions include going from a three-drug lethal-injection cocktail to one that uses two drugs, and employing a "qualified person" to determine whether an inmate has lost consciousness.
But the inmates and the ACLU "apparently believe they have license to raise any argument that newly comes to mind" and attempt to bring back old arguments that already have been decided by the judge and should be barred, Fowler said.
Sherlock ruled in September that state law required two drugs to be used, not three, and the previous procedures did not ensure qualified individuals were verifying the inmate was incapable of feeling pain before the final drugs were administered.
The new procedure calls for an injection of the barbiturate sodium pentothal to put the inmate into a coma, followed by an injection of a paralytic agent called pancuronium bromide.
The revisions eliminate the third drug, potassium chloride, which is used to stop an inmate's heart.
Sodium pentothal is no longer manufactured in the U.S., and it can't be imported. The Department of Corrections said another barbiturate, pentobarbital, can be substituted for sodium pentothal.
The plaintiffs argued that pentobarbital is not an adequate substitute for sodium pentothal and the two-drug procedure creates the risk that the inmate will suffer before death. Many states now use a one-drug procedure, the inmates' attorneys argued.
The changes were made without input from medical professionals and the revisions don't spell out how the warden will choose the qualified person to monitor the inmate or how the drugs will be administered, according to the inmates' attorneys.
Fowler dismissed all those claims, saying they weren't relevant to the judge's past order or should have been brought up earlier.
A 5-gram dose of pentobarbital will cause death in virtually anybody, and the subsequent injection of pancuronium bromide will prevent the person from being able to breathe. The use of both pentobarbital and pancuronium have been upheld by Montana and other courts in executions, Fowler said.
The Department of Corrections is exempt from the normal rule-making process when it comes to public input, and death-row inmates don't have the right to set the rules on how they are to be executed, Fowler argued.
"The operation of penal institutions is primarily based upon a military model," he said.