Ron Smith can't remember exactly how old he was when he overheard the conversation, but it was before he started drinking, so it was before he was 11. He doesn't recall exactly what was said, either. When his aunts were finished talking, though, he was certain: He was a mistake from which his father could never recover.
Nelson Smith's temper was a constant presence in the Smith home. He worked in the oil fields of central Alberta and was away from his wife, Dolores, his two daughters and his son, Ron, for months at a time. When he was home, he drank himself into volatile stupors, often beating Dolores. Smith would intervene, but his efforts only redirected his father's rage. Documents filed in U. S. District Court in 1995 recount one such instance, when Dolores went to check on her son in the wake Nelson's latest tantrum. Ron's blood was splattered on the bedroom wall.
Today, at the Montana State Prison in Deer Lodge, Smith talks about that conversation between his aunts, about his father and about the seed of anger planted in him as a young boy. Smith, now 54, has a barrel chest and forearms made thick by the hour of weightlifting he's allowed each day. He has a gray handlebar mustache that sometimes does the smiling his mouth refuses. He talks unsentimentally about his life and the double murder that landed him in prison. Perhaps this is to be expected of a man who has spent the last 30 years thinking about his life in the imminence of his date with an executioner.
Next week, Smith, who senselessly killed two young men in 1982, and his attorneys will plead his case before the Montana Board of Paroles and Pardons. The board will make a recommendation, and then it will be up to Gov. Brian Schweitzer alone to decide Smith's fate: lethal injection or life in prison.
Smith has a dagger tattooed on his forearm, a remnant from his days as an occultist. He says he was never drawn to organized religion, but in his youth he thought about the world and the possibility of a higher power, an all-connecting energy, an afterlife. "I've never really been able to figure all that out. Recently, various people have been trying to encourage me to develop a closer relationship with God," he says, emphasizing the capital G, "but if He's all knowing, then He's pretty much got me figured out."
The urge to kill
Ronald Allen Smith was born in Wetaskiwin, Alberta, in 1957. He says his early years were typical: He listened to music (Elvis, Johnny Cash, Conway Twitty), he liked reading (Treasure Island, Ivanhoe) and, as is custom in Alberta, he loved hockey. But life at home eventually became too much to bear. By 14, he'd made a habit of getting drunk and was out of school and living on his own, drifting between the houses and couches of friends and extended family. He spoke to his mother sporadically. He wasn't sure his father even knew he was gone. When he was 16, he was arrested for theft. By 18, he'd been arrested for theft and drug possession four more times. He drank and used drugs constantly. "Partying was pretty much the whole scene," he recalls. "I had no aspiring hopes."
In January of 1982, after being released from jail for breaking-and-entering, Smith discovered he had a daughter, Carmen. He hadn't spoken to the girl's mother in years. Carmen was four. Smith wanted to be a part of her life. The mother resisted. This was the first time Smith became aware of the "serious slide" he was on, he says. He wanted to be a father, but he knew he didn't deserve it.
Later that year, he ran into a police officer outside a bar. He'd first encountered the officer five years before, when he stole his patrol car. Smith says the man had been embarrassed by the incident and launched a vendetta against him. He says the officer pulled him over numerous times without cause and once shined a spotlight through Smith's bedroom window in the middle of the night.
Outside the bar, Smith was drunk and taunted the officer. "I did everything in my power to get him to take a swing at me, because then I could do whatever I wanted to him," Smith recalls. "But the fact that he wouldn't give me the opportunity to deal with him physically, that's when I snapped. I wanted to kill him."
The urge to kill supplanted an aspect of his humanity. He knew he had to change, he says. A month and a half later, he headed south.
On the night of Aug. 2, 1982, Smith, then 24, walked across the Canadian border north of Babb. He carried a backpack, a few changes of clothes, a sawed-off .22-caliber rifle and a handful of bullets in his pocket. He traveled with two other men, Rodney Munro and Andre Fontaine. Smith was headed for Mexico. The journey, he had convinced himself, would correct the trajectory of his life. It would clear his mind, set him straight and one day return him to Canada a different man, ready for fatherhood.
Munro and Fontaine wanted to join, insisting they'd only tag along so long as it took to score some drugs, Smith says. Then they'd leave Smith and return home.
"I should have gone with my original plan, there wasn't gonna be anybody but me," Smith says. "I thought I needed to get away from my crazy life and then come back and be a good dad. Now I know I just needed to quit drinking."
The men spent a night in a grain silo near the border. The next day, they walked and thumbed to East Glacier, where, on Aug. 4, they posted up in a bar on the south side of town.
Since embarking, the three had been drinking beer and taking LSD continuously. Court documents would later allege that on Aug. 4, Smith consumed between 12 and 18 beers and had been eating between 30 and 40 hits of LSD a day for several days.
At the bar, the men played pool and cooled off from the blacktop heat of the highway. There, they met two Montanans, Blackfeet tribal members, Thomas Running Rabbit Jr., 20, and his cousin Harvey Mad Man Jr., 23.
Later that day, the cousins were driving west on Highway 2 in a 1977 Ford LTD they'd borrowed from their grandmother. They stopped for three hitchhikers — the Canadian men they'd met in the bar.
About 20 minutes later, at mile marker 195, near the top of Marias Pass, the men stopped to relieve themselves. When they returned, Smith held his sawed-off .22. He and Munro marched Running Rabbit and Mad Man into the woods. Smith shot Mad Man in the back of the head while Munro stabbed Running Rabbit. Smith then shot Running Rabbit through his temple.
Smith, Munro and Fontaine scratched the VIN off the vehicle. Near Elmo, they found an abandoned Mazda and stole the plates. They headed for California, where Munro and Fontaine were arrested after robbing a convenience store. Smith made it to Rock Springs, Wyo., before he was apprehended on Aug. 27 and eventually charged with two counts of deliberate homicide and two counts of aggravated kidnapping.
Smith was brought back to Flathead County. On Feb. 2, 1983, the county attorney offered him a plea deal: the state would drop the kidnapping charges and not recommend the death penalty, resulting in a life sentence.
On Feb. 24, Smith rejected the deal. During the subsequent trial, Smith's public defender offered no mitigating circumstances. The attorney would later admit to spending a total of 10 hours on Smith's defense.
A month later, Smith requested the death penalty. The state obliged.
On April 11, 1983, Smith asked the court to reconsider his sentence, hoping, perhaps, the judge would acknowledge the previous plea offer. Smith was sober for the first time in years, and, after being transferred from Flathead County Jail to Montana State Prison, felt that if he could drag it out, he might be able to contact his daughter and find time to mend some of the relationships with his family.
The court upheld the sentence. Smith then appealed to the Montana Supreme Court, where the sentence was again affirmed. Then, in 1990, Smith's case went to federal court, the Ninth Circuit Court of Appeals. The court told Montana to re-sentence him.
In 1993, at an evidentiary hearing, Smith's new attorneys, Greg Jackson of Helena and Don Vernay, a death penalty specialist from New Mexico, presented a comprehensive defense.
In order for a murder case to become a capital case, Montana stipulates that one or more of a list of ten aggravating circumstances must be proven by the prosecution, such as that the defendant lay in wait for the victim or that the victim was a government employee. The defense typically responds with mitigating circumstances. Among the 11 mitigating circumstances presented by Jackson and Vernay were that Rodney Munro, Smith's co-defendant, who took the plea deal, was sentenced to 60 years and eventually paroled in Canada; that Smith had apologized, shown remorse and accepted responsibility for killing the men; and that Smith was mentally and emotionally disturbed when he did it. At 17, Smith was evaluated by psychologists in the Canadian criminal system. He was again evaluated at 24, after his offense, and once more, in preparation for the appeal, at 36. The tests show a 17-year-old Smith and a 36 year-old Smith are nearly identical. A 24 year-old — Smith showed a decline of 16 points on his full-scale I.Q. and 21 points on his verbal.
It wasn't enough. A Montana district court again sentenced Smith to death.
At this point, Smith had been sentenced to die three times. But he was no longer just delaying his inevitable execution. He had a new reason to live.
After the 1990 sentencing, Smith received a letter from his father. Nelson wanted Ron to know he was sorry, and that though he'd made many mistakes in his life, having a son was not one of them. A years-long correspondence ensued in which old wounds were healed and the men forged a kinship they'd never before shared.
During this time, Smith also became closer with other members of his family. His sisters began making a yearly drive from Alberta to visit him in prison. He began to believe a relationship with his daughter was possible, despite the past, despite the future.
"I keep going for my family," he says. "To be there for them, to provide as much interaction as I can, for my circumstance ... I don't want to do to them what I did to the families of the victims."
Today, Smith writes each of his family members regularly and speaks to them about once a week on the phone. He also has a relationship with his daughter. She's now 35 and has two children of her own. Smith says he writes each of his grandchildren once a week. He hasn't spoken to the Running Rabbit or Mad Man families. He says he'd like to, but he knows it would have to be on their terms. "Sorry," he says, "doesn't exactly cover it."
Thomas Running Rabbit IV was born June 21, 1982, about six weeks before his father was murdered. He was raised by his mother and grandparents. By the time he was 3 or 4, he says, his mother was remarried. When he was 6, his grandmother explained what had happened to his real father.
Running Rabbit says people should know that Smith's crime still echoes loudly in his family. "Every year, when appeals and court hearings come up, it dredges up these feelings, depression, crying," he says. "And disbelief at the court system, how this could be dragged on so long.
"I don't understand why there is even an option of clemency."
Cruel and unusual
On Sept. 10, 1943, Philip "Slim" Coleman Jr. was hanged in the Missoula County Jail. He'd been convicted of killing Carl and Roslyn Pearson and robbing them of $200 and their car. Coleman allegedly showed no remorse for his crime, even bragged about other people he'd killed back home in St. Louis. The day before his execution, he asked to be baptized into the Catholic faith. The next day, Father Henry L. Sweeny accompanied Coleman to the execution room. Coleman was the 71st man hanged in Montana since 1863. He was the ninth black man.
Montana then went 52 years without an execution, a period that saw the mechanics of capital punishment in the United States change drastically. In 1972, the U.S. Supreme Court came to a 5-4 decision striking down most state death penalty laws, finding them "arbitrary and capricious." The court held that the laws violated the "cruel and unusual punishment" provision of the 8th amendment. A federal moratorium ensued. Over 600 condemned inmates had their death sentences lifted.
States responded by modernizing death penalty statutes. Most adopted a bifurcated trial system: a jury trial to determine guilt or innocence and a second trial before a judge for the sentencing. States also implemented an automatic process of appeals that would boomerang all capital cases from the state to the federal level and back again. Appeased, the U.S. Supreme Court lifted the moratorium in 1976.
It wasn't until a year later, in 1977, that the biggest change to U.S. capital punishment came. Hanging, the electric chair and a firing squad were thought to be gruesome, visceral and theatrical ways to execute criminals. The gas chamber, too, was eventually thought to be inhumane, given that the inmate suffered considerably before his or her heart stopped.
In 1977, Oklahoma's state medical examiner, Jay Chapman, proposed a different method: lethal injection. The protocol called for a three-drug cocktail to be intravenously administered. This was quiet compared to past methods — almost a medical procedure rather than a state-sponsored killing.
Today, all 33 capital punishment states use lethal injection as the primary method of execution, and nearly all of them, including Montana, use a version of the three-drug protocol first proposed in Oklahoma. On Aug. 12, 2011, his last day in office, Montana State Prison Warden Mike Mahoney signed off on a revised protocol for Montana executions. The reason for the revision, in large part, was because sodium thiopental, a barbiturate intended to anesthetize an inmate, has been made unavailable for executions by its manufacturer. The new protocol substitutes the old drug with pentobarbital, a barbiturate typically used by veterinarians to euthanize animals.
If Ron Smith is denied clemency, his life will be sustained for a few more months by Montana's new protocol, which Helena-based attorney Ron Waterman says does not go far enough. In the fall of 2011, Smith was granted a stay of execution based upon complaints Waterman presented to the First Judicial Court in Lewis and Clark County. Among the grievances are that the 149-page protocol does not stipulate what training or experience the executioner must have, only that he or she "volunteer" and "be trained by the warden"; and that the protocol, like all three-drug protocols, calls for a paralytic agent, pancuronium bromide, to be administered before the final, heart-stopping drug, potassium chloride. Waterman argues that the paralytic agent merely plants the façade of a peaceful, humane death by masking any pain the inmate feels.
In 1995, Waterman witnessed the execution of his client, Duncan McKenzie. McKenzie was sentenced to death in 1974 after being convicted of the rape and murder of a Conrad schoolteacher. It was the first execution in Montana since 1943 and the first lethal injection in state history. The week leading up to the execution date, Waterman visited McKenzie everyday. They had exhausted every possibility for a stay, for clemency, for some way to prolong McKenzie's life a little longer. At 9:30 p.m., hours after McKenzie's last meal — a steak and an Orange Crush soda — it was clear there would be no more interference from the courts.
Just before midnight, McKenzie was rolled into the execution chamber, a 12-by-48-foot, single-wide trailer next to the maximum security unit in Deer Lodge. (MSP has plans to build a new chamber.) McKenzie was strapped to a cross-shaped gurney. Waterman watched from a row of folding chairs. McKenzie had no final words, but he and Waterman had worked out a series of simple hand signals to communicate how he was feeling. McKenzie gave a thumbs-up before the first drug was administered. By the time the second drug was administered, McKenzie was completely paralyzed. Whether or not he felt pain when the final drug entered his veins, Waterman will never know. McKenzie couldn't move his thumbs.
What it costs
As Ron Smith's clemency hearing nears, a number of voices have spoken in his favor, including the Canadian government's. In a letter to the Montana Board of Paroles and Pardons, Canadian Foreign Affairs Minister John Baird wrote, "The government of Canada does not sympathize with violent crime ... The government of Canada requests you grant clemency to Mr. Smith on humanitarian grounds." Though people close to Smith agree that he is a very different man from the person who murdered Running Rabbit and Mad Man, most of Smith's support reflects the Canadian government's position, calling for clemency based on a humanitarian rejection of capital punishment, no matter the crime.
Dave Wanzenreid has served in the Montana legislature for over 20 years. In the last decade, he has made the abolishment of the death penalty his priority. "I ran for office six times before anyone ever asked me what my position on the death penalty was," Wanzenreid says. "I think the more people pick up the lid on the garbage can, they're going to find out what's in there, and they're not gonna like what they see." What they're going to see, he continues, is "a decrepit and failed institution."
In the last three state legislative sessions, Wanzenreid sponsored a bill to abolish Montana's death penalty, replacing the sentence with life without parole. In 2007, the bill passed the Senate. According to Wanzenreid, it was the "first time in history that a legislative body controlled by Republicans has ever passed a bill to abolish the death penalty." The bill was then struck down in the House.
In 2009 and 2011, the bill again passed the Senate before, again, being killed by the House Judiciary Committee.
Montana seems to be following a nationwide trend, albeit at a glacial pace. Earlier this month, Connecticut became the seventeenth state, and the fifth in the past five years, to abolish the death penalty, making life without parole the maximum criminal sentence. Similar legislation is pending in Kentucky, Maryland and Kansas.
Of the reasons for abolition Wanzenreid cites, cost may be the most compelling, given its partisan neutrality. Though there has never been a comprehensive study of the cost of capital punishment cases for Montana, a rigorous study conducted by the Urban Institute for the state of Maryland found that a death penalty case costs, on average, $2 million more than a comparable non-capital case. The study found that between 1978 and 1999, the state spent $186,000,000 to try capital cases resulting in five executions.
According to the Abolition Coalition, a Helena-based nonprofit dedicated to ending the death penalty, a capital case in Gallatin County cost the Montana Public Defenders Office $115,000. A comparable case, tried in Lewis and Clark County, where the death penalty was not sought, cost $3,200.
The reasons for the exorbitant costs are complicated and the specifics vary from state to state. In short, the changes that were made to state death penalty laws in the 1970s came with price tags. The bifurcated trial system and automatic appeals process have led to more lawyers, more judges, more expert witnesses, more hearings and hours and hours and hours of billable work.
Yet, despite the rigorous court proceedings, mistakes are still made. According to the Death Penalty Information Center, 140 people have been released from death row after evidence, usually from DNA, proved their innocence. Since 2000, an average of five condemned people have been exonerated each year.
Ed Corrigan, the prosecuting attorney for Flathead County, says both the cost and the risk of the process are warranted. "I believe personally that there is a class of homicides that are sufficiently heinous that ... life without parole or 100 years in prison are not adequate," he says. "In those cases where the death penalty should apply because of the heinous nature of the crime, the economic considerations don't come into play for me ... The costs are something the state is going to have to bear."
The governor's wisdom
Ron Smith was not at the prison when his friend Duncan McKenzie was executed in 1995. He was in court for one of his appeals. Asked how McKenzie's death affected him, he shrugs and says, "I just got back from court and I didn't have Mac to pick on anymore."
Smith is locked down in a maximum security cell 23 hours a day. He watches television, reads and listens to the radio. Sometimes, on the radio, he can pick up hockey games out of Calgary.
He doesn't expect to be forgiven for his crimes, he says. He understands they deserve harsh judgment, but he wants people to know that the man who committed them is already gone.
Unable to change the past, Smith has worked hard to make the future more promising. Since the dialogue with his father, he has earned his GED. He's begun taking college courses and now has the equivalent training of a paralegal. One day, circumstances permitting, he hopes to assist fellow inmates with their legal issues.
Jon Salmonson, a now-retired instructor for the education department at the Montana State Prison, taught Smith for years. In a 2011 letter to Gov. Schweitzer, he wrote that Smith's "effort and example enabled other inmates to have access to a college-level program that challenged their abilities and led them into areas of thought and competence beyond their previous experience. Ron Smith led the way."
In 2010, Smith appealed to the Ninth Circuit Court of Appeals for the second and final time. The appellate court again denied him. The court "unanimously agreed that the actions of his attorney in representing him at the time of his plea of guilty were deplorable, [but] because Mr. Smith voluntarily pled guilty to his offenses, he was not prejudiced by his attorney's deplorable actions."
Included in the court's decision was the following passage: "By all accounts, Smith has reformed his life. He has developed strong relationships with various members of his family and has taken advantage of the educational opportunities offered by the prison that houses him. He has expressed deep regret for his deplorable actions. However, consideration of these issues are beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch."
Greg Jackson and Don Vernay, who were assigned Smith's case when it first went to the Ninth Circuit, have worked and studied in capital law for most of their careers. Jackson says he's never seen a federal court take a measure "virtually recommending that the governor grant ... clemency."
This will be the first death-row clemency petition Schweitzer has faced. He declined to discuss Smith's case with the Independent, but he's said the decision weighs on him: "You're not talking to a governor who is jubilant about these things," he told a reporter from Canada, where there is no death penalty. "It feels like you're carrying more than the weight of an angus bull on your shoulders."
Smith isn't getting much support from the people who might be whispering in the governor's ear come May 2, the day Smith's case will be heard. On Feb. 22, 2012, the Independent received the following statement from John Doran, a communications officer with the Montana Department of Justice: "The state of Montana will file a written response opposing Ronald Allen Smith's petition for commutation of his sentence and intends to defend the strong court record upholding his original death sentences."
Then, in early April, less than a month before the hearing, Smith's attorneys received an email from the Montana Board of Pardons and Paroles containing a four-page document apparently giving the board's recommendation before the case was heard. "Smith does not meet any of the commutation criteria as outlined in the BOPP administrative rules," it said. "Smith hasn't demonstrated an extended period of exemplary performance and there doesn't appear to be any extraordinary mitigating or extenuating circumstances that would constitute the exceptional remedy such as commutation. It is recommended [that] a commutation of a sentence be denied."
The board has said the document was written by a staffer and is no more than the staffer's recommendation, standard procedure in clemency cases. The board said the email was sent in error.
If he's denied clemency, Smith's life will continue as long as it takes the state to work out the lawsuit with Ron Waterman over the protocol. The hearing in that case is scheduled for September 2012.
Live with it
On Aug. 6, 1982, Cecile Grant reported her grandchildren, Harvey and Thomas, missing. A search party went out to look for the men but came back empty-handed. Within a day, news of Fontaine and Munro's arrests reached Flathead County. Cecile Grant's Ford had been recovered, and the nature of the search changed.
Gabe Grant, uncle to Thomas Running Rabbit and Harvey Mad Man, was a member of the party that found the men's bodies. Though he did not return phone calls from the Independent, he described the events in a March 2012 article in the Great Falls Tribune: "We did it an organized way so we didn't miss a spot. We went all the way up to Paradise, Montana, and walked the entire road back to the reservation." The bodies were finally found on Sept. 17. "They were in a little indentation on the edge of steep side hill," he said. "There was a stream running through there."
Gabe Grant and Carol Arrow Top are two of only a few living family members with any memory of Thomas and Harvey. Arrow Top was their aunt. "They were friends, they were cousins, they were brothers," she remembers. "Harvey was a kind kid. He was a gentle person. He wanted knowledge. He asked a lot of questions."
The Running Rabbit and Mad Man families have spent the last 30 years waiting for a sclerotic justice system to provide some sort of closure. Ron Smith's case has now outlived nearly everyone who knew Harvey and Thomas, and, in a way, outlived the man who committed the crime. The children of the victims and the convicted have barely known a life without the thunderhead of the next appeal, the next court date, looming on the horizon.
Jessica Crawford was 5 when her father was murdered. Like her brother, Thomas Running Rabbit IV, she was raised by her mother and grandparents. According to Greg Jackson, there was a time when everyone in the Running Rabbit family wanted to see Smith executed. But after seeing Smith at a court hearing in Helena, Crawford, who is now in her early thirties and a mother, changed her mind.
In 2011, Crawford told the Canadian Press she feels Smith should "remain locked away." She continued, "After seeing him and seeing how real it was, I just feel it is more of a punishment for him that he just sit out his years."
She doesn't forgive Smith, she said. "I just think he should have to live with it."