Good news for death-row Canadian Ronald Smith: judge rejects execution drug

The barbiturate pentobarbital does not meet the state law’s standards for executions, District Judge Jeffrey Sherlock said.


“The state of Montana will either need to select a barbiturate that is ultra-fast-acting to accomplish the execution… or it will need to modify its statute”, Sherlock wrote.

The judge stressed that his ruling does not concern whether the death penalty is constitutional or whether the drug’s use constitutes cruel and usual punishment, but only whether the drug satisfied the law.

“Scrupulous adherence to statutory mandates is especially important here given the gravity of the death penalty”, Sherlock said in his order.

The court determined that pentobarbital did not and prohibited the state from using it in its lethal injection protocol, the ACLU stated. That means Montana prison officials either have to find a faster-acting drug – which is likely not available – or lawmakers have to change the statute. The state’s execution protocol lists sodium pentothal as the barbiturate, with pentobarbital as a substitute; however, sodium pentothal is no longer available for use in executions in the United States, and its importation is illegal because it is not approved by the Food and Drug Administration.

The decision is unlikely to have any immediate impact in Montana, which has no executions planned and has conducted only three since 1976, when the U.S. Supreme Court reinstated the death penalty.

Only four barbiturates can be classified as “ultra-fast acting” – sodium pentothal, thiopental, thiamylal and methohexital.

The Montana Attorney General’s office was studying the decision and would not comment on the ruling, a spokeswoman said.

The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the state’s lethal injection protocol.


Sodium pentothal takes effect nearly instantaneously, while a person given pentobarbital would breathe longer, move his body and slur his words before taking effect, Dr. Mark Heath, a Columbia University anesthesiologist, testified last month. According to the ACLU, attorney Ron Waterman filed the lawsuit on behalf of death row inmate Ronald Allen Smith in 2008. The lawsuit argued the inmates would suffer if the barbiturate didn’t act fast enough.

Gollehon and Smith are Montana's only death-row inmates