Montana

Montana

Death-Penalty Repeal Efforts Across U.S. Spurred by Growing Conservative Support

Bills to repeal and replace the death penalty with non-capital punishments have gained new traction across the United States in 2019 as a result of opposition to the death penalty among ideologically conservative legislators. That movement – buoyed by fiscal and pro-life conservatives, conservative law-reform advocates, and the deepening involvement of the Catholic Church in death-penalty abolition – has led to unprecedented successes in numerous houses of state legislatures and moved repeal efforts closer to fruition in a number of deeply Republican states. In 2019, conservative legislators are leading the call for death-penalty abolition in conservative-leaning states such as Wyoming, Montana, and Kentucky, and playing a critical role in bipartisan efforts to repeal or reform capital punishment in Virginia and New Hampshire.

The surprise strength of a death-penalty repeal bill in Wyoming is emblematic of the growing Republican abolition movement. There, in an overwhelmingly Republican legislature, a bill to replace the death penalty with life without parole garnered significant support from both parties and passed the state house and a senate committee before falling short in the full senate. In Kentucky and Montana, Republican legislators have introduced abolition legislation and are attempting to build coalition support, and in Virginia, the Republican-controlled state Senate passed a bill to ban the death penalty for people with severe mental illness. Conservatives have said they oppose capital punishment because of pro-life beliefs, a desire to reduce government spending, and the lack of deterrent effect. In New Hampshire, a bill to abolish the death penalty passed the legislature with bipartisan support, but was vetoed in 2018. The legislature has renewed bipartisan repeal efforts in 2019.

The Wyoming House of Representatives voted (36-21) on February 1 to pass HB 145, a bill to abolish the death penalty. The bill garnered the support of a majority of House Republicans, all the house Democrats who voted, and the chamber’s lone Independent. It then unanimously passed the Republican-controlled Senate Judiciary Committee on February 13, before being defeated in the full Senate by a vote of 12-18. In the Senate, nine Republicans and all three Democrats voted in favor of abolition. The bill was introduced by Republican Rep. Jared Olsen of Cheyenne with Republican and Democratic co-sponsors in both houses. Senate co-sponsor Brian Boner (R – Converse) said, “We have an obligation to have a justice system that is blind and based on facts, and not based on what we wished it was or what it used to be.” Olsen said he was concerned about the number of exonerations from death row. “It is way too much authority to vest in our government, and we get it wrong,” he said. Concerns about costs convinced Sen. Bill Landen (R – Casper) to vote for abolition. "I finally decided that I can't go home and feel good about explaining to people all of those myriad of cuts we've made to the state budget and then defend expenditures like this, which have gone on for years and years and years," he said. Wyoming spends an estimated $750,000 per year on legal costs associated with the death penalty, but has not executed anyone since 1992 nor imposed a death sentence since 2004.

Kentucky House Majority Whip Chad McCoy (R – Nelson) said he hopes to get support for his abolition bill from Catholic legislators who have a moral opposition to the death penalty, as well as fiscal conservatives who see it as a costly, ineffective government program. “When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle. And mine is purely economics,” he said. Kentucky also rarely uses the death penalty. Its last execution was in 2008 and its last death sentence was in 2014. State Representative Mike Hopkins, R-Missoula, the sponsor of Montana’s bill to replace the death penalty with life in prison without the possibility of parole, told a House committee on February 18 that the state’s death penalty was simply ineffective. The two people sentenced to death in the state have been on death row for thirty years, he said, and “there is no logical measurement that 30 years equals a death sentence. … Regardless of how you feel because of capital punishment, nobody is dying from it.”

Montana Prosecutors Drop Death Penalty Against Mentally Ill Defendant

Lloyd Barrus (pictured, left) will not become the first person sentenced to death in Montana this century, after prosecutors dropped their pursuit of the death penalty for the killing of a sheriff's deputy. In a motion filed July 19, 2018, Broadwater County Attorney Cory Swanson (pictured, right) wrote that, "after extensive analysis of the Defendant's history of ... mental illness," the state would no longer seek the death penalty in the case. Doctors at the Montana State Hospital had diagnosed Barrus with multiple mental health disorders, including a delusional disorder, that led Judge Kathy Seeley to find him incompetent to stand trial and to commit him to a mental hospital for treatment. Medical records documented Barrus's history of mental health issues dating to 2000, and Swanson did not contest the diagnoses. The prosecution's notice to withdraw the death penalty acknowledged that Barrus's mental illness was potentially a "sufficiently mitigating circumstance" for the court to choose a life sentence over the death penalty. Swanson said he believes the mental health treatment plan ordered by the court will restore Barrus's competency to be tried, that he "expects to try this case before a jury, and believes the court will have the opportunity to hold the Defendant accountable through a just sentence, which includes up to imprisonment for life without the possibility of parole." With the death penalty off the table, Montana will continue its 21-year streak without a death sentence. The last time the state sentenced a defendant to death was 1996. Just two people remain on Montana's death row, and the state's last execution was in 2006. Several states have considered bills in recent years that would exempt people with severe mental illness from the death penalty, but no state has imposed such a ban.

Amid Unavailability of Lethal Injection Drugs, States Push Legal Limits to Carry Out Executions

"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.

Montana Judge Puts Executions on Hold

On October 6, Montana District Court Judge Jeffrey Sherlock (pictured) held that the state's proposed lethal injection protocol violated state law, which requires that an "ultra fast-acting barbiturate" be used in executions. Judge Sherlock said the proposed barbiturate, pentobarbital, does not qualify as such a drug. The ruling stated, "The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision." In 2012, a judge struck down Montana's three-drug protocol because it differed from the two-drug protocol called for in state law. As a result of the most recent ruling, executions in Montana will continue to be on hold indefinitely. “The State has had multiple opportunities to correct the problems with the death penalty protocol. And each time they came up with a new flawed procedure,” said ACLU Legal Director Jim Taylor. “Seven years of litigation has demonstrated that Montana's death penalty is broken beyond repair." Montana has carried out three executions since 1976, the last of which was in 2006. Earlier in 2015, a bill to repeal the death penalty failed on a tie vote in the House of Representatives.

Recent Developments in Death Penalty Legislation

Several state legislatures have recently taken action on bills related to capital punishment. In Arkansas, a bill to abolish the death penalty passed the Senate Judiciary Committee on a voice vote. Bill sponsor Sen. David Burnett, a former prosecutor and judge who both sought and imposed the death penalty, said, "It's no longer a deterrent. It's a punishment that's actually broken. It doesn't work. And it costs a huge amount of money to try and prosecute those cases." Arkansas last carried out an execution in 2005. A similar bill in Montana was approved by a House committee with bipartisan support, but failed on a tied vote (50-50) in the full House. Before the vote, repeal supporter Rep. Mitch Tropila said, “This is an historic moment in the Montana House of Representatives. It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history." Montana's last execution took place in 2006. Virginia legislators rejected a bill to shield information related to lethal injection as state secrets. The House of Delegates voted 56-42 against the bill, which would have exempted “all information relating to the execution process,” including the source of execution drugs and the buildings and equipment used for executions, from open records laws. Del. Scott A. Surovell commented, "Anytime somebody in the government wants to restrict information about what the government is going to do, I think we need to ask some really difficult questions and get some straight answers before we grant them that right.”

Death Penalty Repeal Bill Advances with Bi-Partisan Support in Montana

On February 18, the Montana House Judiciary Committee voted (11-10) to advance HB 370, a bill to replace the death penalty with a maximum sentence of life without parole. The same committee had rejected similar bills several times in recent years. The bill will now move to the full House. Republican bill sponsor Rep. David Moore (pictured) said he thought the bill had a decent chance of passing in the House. Rep. Clayton Fiscus, one of two Republican members of the Judiciary Committee who supported the bill, said, "Our death penalty is a joke." He cited the high cost of capital trials and concerns about executing an innocent person as reasons for supporting abolition. Rep. Bruce Meyers, the other Republican who voted to advance the bill, said he was religiously opposed to capital punishment: “That was part of my conscience, the way I was raised. Native Americans view all life as being sacred.” All 9 Democratic members of the committee also voted in favor of the bill.

EDITORIALS: Montana Paper Calls for Repeal

A recent editorial in the Great Falls Tribune in Montana outlined some of the key problems with the death penalty as the state legislature considers its repeal. The editors expressed concerns about the risks of mistake with executions: “There is no way to take back an execution. That reason alone provides good cause to eliminate the death penalty in Montana.” The paper also noted that victims' families wait for decades for executions to be carried out, with the defendants receiving most of the attention: "[D]uring the long periods before their executions, these men received regular publicity and notoriety for their crimes. If they had been simply locked up for life without possibility of parole, people could have forgotten about them." The editorial concluded, “Our bottom line is that it’s risky to execute people when they might not be guilty. In addition, the cost and trauma of court cases that drag on for years is not worth the satisfaction some people receive from the finality of executions. We simply cannot afford to spend millions of dollars each on future death penalty cases.”  Read the editorial below.

Conservatives and Republicans Support Death Penalty Repeal Bill in Montana

A bipartisan group of legislators in Montana will introduce a bill to replace the state's death penalty with a sentence of life without parole. The sponsors include two Republicans and two Democrats. A coalition of conservative lawmakers, religious groups, and human rights groups support the repeal of capital punishment. Republican Sen. Matthew Rosendale (pictured), a member of Conservatives Concerned About the Death Penalty, said his stance on the death penalty did not cost him votes. “People know where I stand on the death penalty and I still got elected by a wide margin....[I]f you stand up and say, ‘I’m against the death penalty,’ you will not lose conservative votes.” He added that conservatives, many of whom are concerned about abortion, have a variety of reasons for opposing the death penalty: “Everyone has their own reasons why they support ending the death penalty. For some folks, it’s for fiscal reasons, and other folks oppose it for moral issues.”

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