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.

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

  1. It is astonishing the lofty demands some people make for care/welfare of convicted murderers while nary a word about the numerous people The State murders every year – I live in peculiar era where narcissists and sociopaths are considered humanitarians.

    Perhaps it would help pro lifers if someone developed a camera/mic that could be sent up woman’s vajayjay and baby could tell us all about how much she’s enjoying her time in womb and how excited and anxious she is to start her next phase of life.

    Cosh – I wonder how many of your msm colleagues take time to educate themselves about public policy before opining on topics? You one of few Canadian journos who do more than give us a peek into their id and actually provide reader with facts/data.

  2. National Post – June 2012:
    “Six months ago an amendment was passed to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) …. So in one fell swoop all abortion-related data is secret. Why? …. The abortion numbers we already know – over 100,000 a year in Canada, and 44,000 billed-for abortion in Ontario alone in 2010 (we won’t be able to know how many in 2011) …”

    PJ O’Rourke ~ The second item in the liberal creed, after self-righteousness, is unaccountability. Liberals have invented whole college majors— psychology, sociology, women’s studies— to prove that nothing is anybody’s fault. No one is fond of taking responsibility for his actions, but consider how much you’d have to hate free will to come up with a political platform that advocates killing unborn babies but not convicted murderers.

    A callous pragmatist might favor abortion and capital punishment. A devout Christian would sanction neither. But it takes years of therapy to arrive at the liberal view.

  3. Dear Ronald,
    Maybe when they’re injecting the drug meant to take what’s left of your worthless life you can understand what it might have been like for Harvey Mad Man and Thomas Running Rabbit just before you murdered them.

  4. This is why I favor firing squads for the death penalty. Four bullets in the heart will result in a quick death, you don’t need a lot of training for it, and the supplies aren’t hard to come by.

    • A bullet in the back of the head gives an even quicker death. But bullets give a messy death. Poison makes much less of a mess of the man. That is what everyone really wants.

      • Utah’s last execution by firing squad didn’t produce a lot of mess (no exploding chest, no spurting blood, according to eyewitnesses), and the face is available for an open casket.
        I believe Cosh has stated before that the guillotine would be the ideal method for execution, because it is swift, but people are too squeamish to use it.

        • He is probably right.It is interesting that lethel injection, the gas chamber, and electrocution would appear to have been picked to minimise mechanical damage to body.

          Apparently punishments are picked to minimise things that look unpleasant to people. People wince when they see someone physically punished, but not when they see someone fined or jailed.

  5. I think one of the signs of a strong democracy is good representation for people who aren`t very popular. Both when they`re unpopular due to membership in some minority or other, and when they happen to just be really awful individuals. (& it helps to distinguish the two.) I don`t really care if Mr. Smith is put to death, but some one still needs to speak on his behalf. The U.S. still has capital punishment punishment, & local laws apply. All I care about is when a state chooses to exercise this type of power over the life of an individual, it has to be subject to the highest level of scrutiny.

    BTW, insulting my viewpoint (or mental capacity) won`t make me change it. Calling me, my friends, family and colleagues stupid because we use well-structured arguments which are grounded in peer-reviewed facts and whose motivation is clearly distinguishable from indigestion won`t change my mind, although it may pander to people who don`t appreciate the value of education. (Yes, education in the hands of the terminally stupid can be dangerous, but the alternative is often ignorance. Ignorance, no matter how warm & comfortable it can be to live in, doesn`t make for good policy.)

    I agree that string up a convicted murderer, especially when the murders relate to racism, sexual issues or or involve children just feels right deep down. I`m just not convinced that it`s the civilised or even the right thing to do. Civilised democracy is probably the messiest & least convenient form of society, but I`m still attached to it. If you that strongly believe that people such as Mr. Smith deserve to be put to death with minimal due process or representation, you can always move to a country where that would happen. I believe China or Russia are always glad to accept western immigrants.

    • Was that a joke? Sorry after reading it I laughed at least a minite before concluding your a criminal or a wannabe and you want sympathy around when your caught.
      By the way I don’t think all criminals are stupid unless they like lots of drugs. They do have a different view of society I find distastefull. But they all have excuses for the damage they cause. I’m sorry is just a plea bargain. When they are sorry again and again and again It’s tine to turn off the recorder and try a new record on the old Victrola. Hang ‘em High.

  6. It is cruel and unusual punishment, and have been condemned as thus by doctors. Other than a few industrial countries like Japan, most industrial countries have abolished the punishment. The latest case of wrongful conviction should have called for the abolishing of the death penalty but his has not. Image one person being sentence to death for a crime they did not commit, there is I am sorry. There is not death penalty for any of those responsible for the false conviction, not even prison time.

    • That’s a fair concern, but that’s NOT the concern here. He’s admitted to the crime. Given that, what objections are there to his execution?

      • It is cruel and unusual punished, and have been condemned as thus by doctors. None the less, he will be executed.

        • A quick death is not cruel, and executions were not considered unusual by the authors of the constitution.
          And the claim “by doctors” is cute. As if doctors had some expertise on the matter that you and I don’t.

          • Just this appeal of this proves that they are. Doctor are in the business of saving peoples lives, and have taken an oath to that. Those who engage in execution make excuses. There is return from prison, but none from death. The constitution is mute on whether or not it is “cruel and unusual punishment,” however courts have ruled that it is not.

          • 1) If doctors cannot participate in executions, then they should not be participating in abortions and euthanasia.
            Beyond that, lethal injection is the issue being judged (and a specific type of lethal injection). If this were by firing squad, or by guillotine, would a doctor’s opinion matter? Of course not.

            2) The founding father’s condoned capital punishment. It was part of the legal process, and in methods, such as hanging, which are far crueler than what we would condone today.

          • If it hurts it’s only for a little while. Far less then the victims I’m sure. Let’s talk balance for a while. If you ran someone over then death by auto accident.
            If you knifed someone them pass the shives around.
            Why should we be so squeamish about how the criminal dies. He didn’t care.
            Nowadays the investigation costs so much and the trial and salaries of the court and police upkeep jail costs are just outrageously high they should be shot for trying to escape to save some of the taxpayer money.
            The old story is true today as much as yesterday, “They are all Innocent” just ask them or their lawyer.

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