Montana | Another Red State Shows No Appetite for Capital Punishment

Montana is a deep red state. In 2024, President Trump received 58% of the state’s vote, and Republicans swept contests for statewide office.

Yet Big Sky Country is no death penalty hotbed. While capital punishment is legal there, it is rarely used.

Late last month, the state legislature rejected a proposal that would have changed that.

Montana has never been a place with frequent executions. Before 1976, when the death penalty was revived in this country, Montana had executed 71 people by hanging, the last one in 1943.

It would be more than fifty years after that before the state again put anyone else to death. In 1995, it executed Duncan McKenzie by lethal injection. Duncan, who was “convicted of aggravated kidnapping and deliberate homicide by means of torture,” insisted he was innocent right up to the time he died.

His was one of three executions in the state since 1976.

Today, there are only two people on Montana’s death row. The last death sentence in the state was handed down in 1997.

All this suggests that Montana’s death penalty is dying. But even there, retaining it as a legal punishment does damage to the abolitionist cause and to the entire country.

What is true there is true in many other states where capital punishment is still on the books.

Of the twenty-seven states in that category, ten have not carried out an execution in the last decade or more. That is a remarkable figure which reveals the death penalty’s precarious hold on American life.

Indeed, Montana will soon pass the twenty-year mark since it last put someone to death On August 11, 2006, Montana executed David Dawson, who “kidnapped and murdered three members of a Billings family, including an 11-year-old boy, in 1986.”

Dawson had fired his attorneys, ended his appeals, and “volunteered” to be executed. He was put to death by lethal injection, using a three-drug protocol.

At the time, the law required the state to use an “ultra-fast-acting barbiturate” to render the inmate unconscious. Montana was then and remains the only state with such a statutory requirement. However, as the ACLU reports, “When the State legislature passed the law in 1983, they did not define the term “ultra-fast acting.”

In 2012, Federal District Judge Jeffrey Sherlock threw a monkey wrench into Montana’s death penalty system when he found the state’s execution procedures “lack(ed) sufficient safeguards to guarantee inmates will be executed in a manner that prevents pain and suffering.” In addition, as Sherlock noted, “the execution protocol was chiefly lacking in its designation of the prison warden – who has no medical training — as the person who determines whether the inmate being executed is unconscious prior to administration of the fatal drug….”

Sherlock concluded that those and other defects “create a substantial risk of serious harm violative of the Plaintiffs’ right to be protected from cruel and unusual punishment.”

Montana tried to cure those problems by deciding to use pentobarbital in future lethal injections. Fifteen other states and the federal government have used that drug to carry out executions.

But Sherlock was still not satisfied. In 2015, he again found problems in Montana’s death penalty.

He ruled that the state could not carry out any new executions “because the state requires the use of an ‘ultra-fast-acting barbiturate’ that is no longer available.” Judge Jeffrey Sherlock found that “the current drug intended to play that role, pentobarbital, does not meet that criteria.”

He enjoined the state “from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision.”

Late last month, the Montana House of Representatives considered a bill designed to get around Sherlock’s objections and make it easier to carry out executions. It was designed to revise the law to afford more discretion to officials charged with carrying out executions and less protection to the people whose lives they would be ending.

That strategy has been used in other death penalty states. In my studies of lethal injection protocols across the country, I found that “ambiguity and discretion provide executioners with a kind of blank check that brings lingering, fraught deaths into the fold of legally acceptable executions. Ambiguous language allows officials to elide details and avoid the specific provisions that once protected inmates from long or painful executions.”

Discretion affords executioners “with the latitude to modify execution procedures on the fly” and allows them to “do what they think necessary to kill the inmate while acting within the authority granted by state protocols.”

The Montana proposal involved eliminating the requirement that the state use an “ultra-fast acting” drug in combination with a “chemical paralytic agent” in its executions. Instead, it would have allowed the state to use “an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death.”

Some of the legislation’s supporters insisted it was only a “technical change. Others, however, were more expansive.

One of the bill’s sponsors, Republican Representative Shannon Maness, explained that the proposal would mean that the state “can use the drugs that are available at the time” they want to carry out an execution. Mannes argued it would prevent the state from getting “’pigeonholed’ by the courts again.” He expressed confidence “that the Department of Corrections has the expertise to find the right cocktail of drugs.”

“We can get out of the hole we’re in,” Mannes concluded, “and get back to executions in this state.”

Opponents conjured images of executions carried out using large quantities of “Antifreeze, rat poison and cyanide.” They warned, “If the Legislature wants to see the death penalty struck down by courts once and for all, this is exactly the bill to do it.”

On January 30, the Montana House of Representatives, which the Republican Party controls, rejected the bill, 51-49.

While narrow, the defeat of this proposal was a clear sign that political leaders in Montana, as in other red states, are not eager to resume executing people. In those places, the death penalty is mostly a symbolic punishment.

As the sociologist and law professor David Garland explains, “In the course of the last half-century, the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that [uses]…death…for political and cultural purposes…. It is about threats rather than deeds, anticipated deaths rather than actual executions.”

When faced with the chance to carry out those deeds, death penalty states like Montana flinch.

Still, as Garland rightly observes, the death penalty, even as a symbolic punishment, does great damage in the United States. As he says, “[I]n American criminal sentencing, the availability of the death penalty permits very lengthy sentences of imprisonment, even imprisonment without parole, to appear comparatively humane, thereby contributing to the nation’s extraordinary rates of imprisonment.”

That is just one reason why it should be ended everywhere, even in places like Montana.

Source: verdict.justia.com, Austin Sarat, March 3, 2025

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde