The ACLU’s bid to save the Canadian on Death Row

Challenge to protocol means Albertan could die of old age before constitutionality of capital punishment is decided

Aug. 4 will be the 30th anniversary of the double murder that put Albertan Ronald Smith on Death Row at Montana’s state prison near the city of Deer Lodge. “Death Row” is just a metaphor in this instance: Montana still has only two inmates awaiting execution, and they live among other maximum-security inmates at the prison. Smith has been, at times, mere weeks from his execution date. In my Alberta Report days, I remember discussing plans with other editors to have someone report on, and if possible, stand witness to, Smith’s demise.

Smith has long outlived that magazine now, and a few of the people who worked for it, too. But I am beginning to sense for the first time that Smith has a pretty good chance of dying in his prison bunk, rather than on a gurney. I know I’ll be pretty p.o.’ed if he outlasts me.

Smith has managed to attract increasing international interest in his professions of contrition==during the past few years, perhaps in part because of the controversy over the Canadian government’s refusal to help him with his clemency application. It would be amusing if the Conservative government had actually helped Smith’s cause, even slightly, by turning a deaf ear to his pleas. But what’s probably more important is the aid Smith is now getting from the American Civil Liberties Union’s Montana office. As Smith’s family goes to work on a popular Democratic state governor, the ACLU is presenting a strong challenge to the constitutionality of capital punishment in Montana.

If you have a morbid bent like mine, you may wish to peruse that challenge [PDF], which takes the bold form of a motion for summary judgment against the state’s execution protocol. The ACLU’s lawyers note that the state updated the protocol last year, but the technical manual continues to call for murderers to be put to death using the bizarre “triple cocktail”—a formula whose origins and rationale nobody really understands, and which is gradually being abandoned by other states in favour of the simpler one-drug method used by veterinarians to euthanize animals.

The actual statutes of Montana mention only two drugs, but that seems like a picky legal technicality. More important to Smith’s fate is the absence of humanitarian safeguards in the execution guidelines, an absence that persists in the new manual. The training and credentialing requirements for the people who would be killing Smith are specified very feebly. As the ACLU observes, the Supreme Court has set a fairly high procedural bar in death penalty cases. If Montana cannot afford to have a well-drilled and medically knowledgeable staff on call for executions, the motion suggests, then maybe it shouldn’t be doing them at all.

The real threat, of course, is not that Montana will have to recruit and develop an entire Death Squad for its two capital offenders. What’s more likely, even if the motion for summary judgment fails, is that the ACLU will win the right to a full and expensive hearing of its constitutional arguments, complete with expert testimony and lots of courtroom time. There’s a further risk, nay, a strong likelihood, that this hearing would probably end with a demand for an even more expensive rewrite of the state’s execution procedures book. (As a bonus, not one but two constitutions are involved here, and the state constitution of Montana has a different standard for “cruel and unusual punishment” than the federal law does.) The ACLU’s Ron Waterman more or less openly admits to CP’s Bill Graveland that he hopes Gov. Brian Schweitzer will take Smith’s age, maturation, and good behaviour into account and walk away from this potentially very obnoxious game.

It might provide the governor an additional reason to say at least there’s been litigation raised that questions the protocol, and this litigation is going to extend out for years and years, and it’s time to put this to bed.

On the other hand, Montana won’t be able to execute anybody at all until its execution manual is put to the judicial test. And there are still people around who very, very much want to see Ronald Smith die on that gurney.

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