Thirty years ago, Canadian-born Ronald Smith was sentenced to death after pleading guilty to the kidnapping and murder of Thomas Running Rabbit Jr. and Harvey Mad Man Jr.
Today, Smith has spent more than half of his life in prison, the vast majority of that locked for 23 hours a day in a maximum security cell in Deer Lodge. He has twice appealed his sentence in the federal Ninth Circuit Court of Appeals. Though neither appeal ultimately resulted in a reduced sentence, the second decision, in 2010, came with a side comment from a federal judge.
"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 ..." the judge wrote. "However, consideration of these issues are beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch."
Smith's co-counsel, Greg Jackson, who has worked in capital law for most of his career, said that he'd never heard of a judge "virtually recommending that the governor ... grant clemency."
Despite the unusual comments, state executives have avoided Smith's petition for the last two years. Former Gov. Brian Schweitzer spoke often about Smith, but left office in January without making a decision. His successor, Steve Bullock, has yet to acknowledge the issue, again leaving Smith and his lawyers wondering about the prisoner's fate.
Bullock's silence is in stark contrast to how Schweitzer handled the issue in recent years. In 2011, Schweitzer spoke to The Canadian Press about wrestling with the decision.
"You're not talking to a governor who is jubilant about these things," he said. "It feels like you're carrying more than the weight of an Angus bull on your shoulders."
Schweitzer did have guidance on the case. Though Montana statute dictates decisions on capital clemency be left to the governor alone, it also requires the Montana Board of Pardons and Parole to hear all cases before making a recommendation to the governor.
Less than a month before Smith's May 2012 hearing before the BOPP, Smith's attorneys received an email from a BOPP staffer seemingly offering its recommendation before it had heard his case.
"Smith does not meet any of the commutation criteria as outlined in the BOPP administrative rules ... " the email said. "It is recommended a commutation of sentence be denied."
Though the BOPP has said the email was sent in error, the board made the same recommendation after Smith's clemency hearing, stating "justice is best served" by continuing with the execution.
By late 2012, as the clock ticked down on Schweitzer's time in office, many anticipated his decision. But on Dec. 18, in an interview with Montana Public Radio, Schweitzer suggested the "Angus bull" had been lifted from his shoulders.
"There isn't necessarily a decision to be made ... ," he said. "I haven't made the decision to even make the decision."
Smith's co-counsel, Don Vernay, who has represented Smith for more than 20 years, says he isn't surprised by Schweitzer's ultimate abstention. "It's a typical politician move—if you don't have to make a decision you don't make a decision," he says.
Vernay adds that certain aspects of the petition process have been handled poorly. He says the "leaked" recommendation made the BOPP clemency hearing a "sham." He also notes that not long before Schweitzer's interview with Montana Public Radio, he received a letter from the governor's office asking that Smith guarantee not to appeal his conviction in the future, suggesting to Smith he had a future.
"To do that to the kid—I call him a kid because I've represented him for so long—to get his hopes up like that and then just bash them, it was absurd," Vernay says.
Gov. Steve Bullock inherited Smith's petition when he took office in January. Though a staffer from his office recently told the Indy Bullock was not prepared to comment on Smith's clemency, Bullock's history as attorney general suggests how he views the issue.
On March 23, 2012, two months before the BOPP clemency hearing, then-Attorney General Bullock wrote a letter to the BOPP titled "State's Opposition to Ronald Allen Smith's Application for Executive Clemency." The letter outlined the reasons why Smith should not be commutated, including assertions that Smith's claims of remorse are insincere and that though Smith has been able to continue a "semblance of family life" behind bars, his victims have been afforded no such privilege.
"Thomas Running Rabbit Jr. and Harvey Mad Man Jr.'s family lives were coldly snuffed out by Smith," Bullock wrote.
Beyond his clemency petition, Smith's only hope is that Montana, like a growing number of states, abolishes the death penalty. Though Montana's House Judiciary Committee recently killed a bill to repeal capital punishment, Montana District Court Judge Jeffrey Sherlock found last year, in a case brought by the American Civil Liberties Union, that Montana's lethal injection protocol is unconstitutional. A new protocol is currently under review.
With history as evidence, Vernay doesn't expect Bullock to make a decision any time soon. He says the work on his end is more or less finished for now. All Smith can do is continue to wait.
"It's been a long road. It just keeps going and going and going. But what are you going to do?" he says. "Welcome to America."