Montana’s judiciary strikes again on capital punishment

Montana Headlines last addressed the issue of capital punishment in the context of Gov. Brian Schweitzer’s contemplation of granting clemency to one of our two death row denizens here in Montana. Now, one reads that a Montana judge has put a stop to executions in Montana by claiming that Montana’s lethal injection policy amounts to “cruel and unusual punishment” under both the U.S. and Montana Constitutions.

I don’t know what the situation is with the Montana Constitution, but it is a joke that it could be contrary to the U.S. Constitution, given that lethal injection is the most widely used means of execution in the U.S. -- and the U.S. Supreme Court hasn’t shown any inclination to stop it.

In addition, there were as recently as 2010 an electrocution in Virginia and a firing squad execution in Utah. The U.S. Supreme Court stopped neither of these. Are we supposed to believe that a lethal injection is more “cruel and unusual” than these -- no matter what specific technique is used for the lethal injection? According to the AP article, the judge thought that there were inadequate procedures for "verifying that the inmate is unconscious and incapable of feeling pain before administration of the death drugs.”

Given that those felons in Utah and Virginia weren’t anesthetized before their shooting and electrocution, respectively, it seems ridiculous to require that there be an incapability of feeling any pain whatsoever prior to execution for it to be constitutional.

The Washington Post article states that "State District Court Judge Jeffrey Sherlock did not question the constitutionality of the death penalty in Montana" -- only the methods and procedures. One wonders if this isn't a distinction without a difference, however, since the net effect is to stop executions in the state. Judge Sherlock reportedly claims that the problems he found could be easily fixed by the state legislature. Maybe so, but only until the next technicality is found that some judge or another will sign off on.

The next question is whether the Montana Supreme Court will embarrass itself yet again in front of the U.S. Supreme Court by upholding this ruling (assuming that Attorney General Steve Bullock appeals it -- something that could get him into hot water with his liberal donor base.) Perhaps it would be good if they did -- while Montanans may be less than interested in how the Montana Supreme Court works backward from result to argumentation in campaign finance or insurance law cases, everyone understands murder. Everyone understands that Ronald Allen Smith didn’t render his two victims “incapable of feeling pain” before giving them a gentle and “humane” death sentence of his own.

There is a proper way to remove the death penalty in Montana, and it is using the political process -- an act of legislature, a Constitutional amendment, whatever. I’ve outlined in the past why I think that this would be a good idea. But judges shouldn’t be laws unto themselves, deciding on their own to abolish the death penalty in our state.