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HELENA — A judge says Montana must change the way it executes prisoners after ruling that the current method is unconstitutional; giving a victory to death penalty foes that could be short-lived.

The decision came in the case of Ronald Allen Smith, a Canadian citizen from Red Deer, Alberta, who is awaiting execution.

The American Civil Liberties Union had filed the case in 2008, arguing that lethal injection protocol amounts to cruel and unusual punishment under the U.S. and Montana constitutions.

Helena District Judge Jeffrey Sherlock ruled Thursday that aspects of it fail to pass constitutional muster.

He said the protocol doesn’t ensure qualified individuals are making key decisions, such as verifying that the inmate is unconscious and incapable of feeling pain before administration of the death drugs. Sherlock said the warden is charged with that decision, although there is no training requirement in place to ensure he can properly determine the inmate is unconscious.

The judge said the job requirements for the setup officer are also lacking. And he pointed out there is inconsistency between what state law requires of an execution procedure, and what the Department of Corrections manual says.

But the judge said needed changes can be easily made by the state — although it could require legislative changes if the state law on the method needs adjustments to comply with requirements. The Legislature meets again in January.

State assistant attorney general C. Mark Fowler said his office is studying the opinion and deciding what options there are to modify the protocol. In the meantime, no executions are scheduled.

“Judge Sherlock’s ruling upholds most of Montana’s lethal injection protocol as constitutional,” Fowler said in a statement. “Modifying the three areas of concern identified by the court can, in the judge’s words, be done ‘easily’ and ‘quickly’ and ‘if done, the modified protocol could not be found in violation of the Montana Constitution.’”

Smith originally sought the death penalty and spurned a plea deal after pleading guilty in 1983 to the shooting deaths of two Blackfeet Indian cousins. He later changed his mind about the death penalty and is now seeking executive clemency from the governor.

Gov. Brian Schweitzer has not indicated how he may rule in the case, but has noted state law does not require he intervene or make a decision at all. The governor’s parole board, after holding a hearing on the case, has recommended that Schweitzer reject clemency.

The lawsuit now also includes Montana’s only other prisoner on death row, William Gollehon.

The ACLU said it thinks changes to state law by the legislature will be needed. Such changes, which require a bill to pass both chambers of the legislature and clear the governor’s desk, will be a more time-consuming and difficult task for the state than a simple re-write of Corrections Department procedures.

“We are pleased that the court recognizes the insufficiencies of the state’s lethal injection protocol and that those insufficiencies create a situation where executions could inflict pain and suffering,” ACLU attorney Ron Waterman said in a statement. “If the state insists on carrying out this most extreme sentence, it has an obligation to do so in a manner that upholds the U.S. and Montana Constitutions.”

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