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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."