[2] Montana currently has two men on death row:[3] Ronald Allen Smith and William Jay Gollehon.
[4] On June 29, 1972, the U.S. Supreme Court in Furman v. Georgia found that state death penalty statutes were unconstitutional because their arbitrary enforcement amounted to "cruel and unusual punishment," which the Eighth Amendment of the U.S. Constitution prohibits.
[8] On July 2, 1976, the U.S. Supreme Court in Gregg v. Georgia held that "the punishment of death does not invariably violate the Constitution.
[12] On May 10, 1995, the first person put to death by lethal injection in Montana was Duncan Peder McKenzie Jr.,[10] who was convicted of deliberate homicide and aggravated kidnapping.
[26] Montana now has a "hybrid" scheme, whereby the trial judge still makes the sentencing decision, but the jury now takes part in the fact-finding process as it relates to a finding of an aggravating circumstance beyond a reasonable doubt.
[28] The application for clemency must be submitted to the Montana Board of Pardons and Parole[29] within 10 days following the district court's determination of the date upon which the person is expected to be executed.
[33] In December 1988, Governor Ted Schwinden granted clemency to David Cameron Keith[34] and reduced his sentence to life in prison without the possibility of parole.
[35] David Cameron Keith received a sentence of death for aggravated kidnapping in March 1988[36] and was scheduled to be executed on January 20, 1989.
[45] Since 1976, three males have been executed in Montana by lethal injection: Duncan Peder McKenzie Jr., Terry Allen Langford, and David Thomas Dawson.
[2] There are presently two men on death row in Montana:[52] William Jay Gollehon and Ronald Allen Smith.
[60] Judge Jeffrey Sherlock, who presided over the case, ruled that three components of Montana's lethal injection method "create[d] a substantial risk of serious harm" to Plaintiffs' Smith and Gollehon.
[61] First, the Court found that the three-drug lethal injection method – sodium pentothal, pancuronium bromide, and potassium chloride – put forth by the Montana Department of Corrections in its Execution Technical Manual failed to satisfy the requirements set out by the legislature in Montana Annotated Code § 46-19-103(3), which requires the use of two, not three drugs: "an ultra-fast-acting barbiturate in combination with a chemical paralytic agent.
[72] In January 2013, the Montana Department of Corrections amended its protocol to include only two drugs: sodium pentothal and pancuronium bromide, thereby removing potassium chloride from its lethal injection method.
[75] That same year, the ACLU challenged the Department's revised two-drug lethal injection method, claiming that the new protocol violated the Montana Constitution.
"[76] On October 6, 2015, Judge Jeffrey Sherlock ruled that pentobarbital could not be characterized as an "ultra-fast-acting barbiturate," which the Montana statute required.
[77] Judge Sherlock noted in his decision that "while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana's execution protocol.
[81] House Bill 244, sponsored by Representative Dennis Lenz, proposed rewriting provisions of Montana Code Annotated § 46-19-103(3), which governs the state's lethal injection method.
[82] Specifically, HB 244 proposed eliminating § 46-19-103(3)'s requirement of an "ultra-fast-acting barbiturate" and amending the provision to read: "The punishment of death must be inflicted by administration of an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death until a coroner or deputy coroner pronounces that the defendant is dead.
[87] Since 1999, there have been multiple attempts by Montana legislators who oppose the death penalty to do away with its use in the state[88] and replace it with life imprisonment without the possibility of parole.