Now in Legal Rebels:
Posted Sep 10, 2012 12:48 pm CDT
A Montana judge has struck down Montana’s lethal injection procedure in an opinion that begins somewhat apologetically.
Judge Jeffrey Sherlock found three deficiencies in the state’s lethal injection procedure, report Reuters and a blog post by the American Civil Liberties Union of Montana. They are: The three-drug cocktail used differs from the two-drug process specified by state statute; there is no requirement that the executioner have experience with intravenous procedures; nor is there an experience or medical training requirement for the warden who determines whether the inmate is unconscious.
Sherlock used heightened scrutiny to evaluate the challenge by two death-row inmates because of a “dignity clause” in the state constitution that gives “a boost” to the ban on cruel and unusual punishment. The clause provides, “The dignity of the human being is inviolable.”
The second paragraph of Sherlock’s opinion (PDF) pointed out that the inmates were challenging the legal injection procedure, rather than the constitutionality of their death sentences. “Thus, ironically, plaintiffs ultimately do not seek to prevent the administration of the death penalty, but rather seek its administration in what they term to be a more humane and painless fashion,” Sherlock wrote. “In essence, plaintiffs are the architects of their own doom. It is also ironic to note that the plaintiffs who, if their sentences mean anything, are strangers to the concepts of mercy and obedience to the law, yet they seek the law’s protection. However, the Montana Constitution protects all people in Montana, even those who may appear undeserving of such protection.”