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Challenge to Montana's execution methods set for oral arguments, trial

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HELENA, Montana — Attorneys representing the state and Montana's two death row inmates will have one last chance to convince a judge to decide a seven-year legal battle over execution procedures before the case goes to trial later this summer.

The ACLU is challenging the constitutionality of the state's lethal injection protocols on behalf of death row inmates Ronald Allen Smith and William Gollehon.

District Judge Jeffrey Sherlock will hear arguments by lawyers for both sides on Aug. 26, when medical witnesses will testify on whether the state's use of the sedative pentobarbital risks undue pain and suffering in executions.

Sherlock could rule based on that hearing or decide to hold a full trial on Sept. 2.

The U.S. Supreme Court in June upheld Oklahoma's use of a different sedative, midazolam, in executions.

"I'm not sure that, given the current jurisprudence in the United States and the recent Supreme Court decision, that they're going to be very successful with opposing pentobarbital," said William Fassett, professor emeritus of pharmacotherapy at Washington State University Spokane. "Pentobarbital is in fact the most common agent for death-with-dignity in Oregon and Washington."

Orally administered versions of the drug are provided for terminally ill patients, but various organizations of pharmacists, physicians and nurses have denounced the practice of supplying prisons with pentobarbital and other drugs used for lethal injections in the U.S.

Fassett helped write one such policy adopted in March by the American Pharmacists Association that says supplying drugs for capital punishment inherently contradicts the profession of helping people.

On an order from Judge Sherlock, the Montana Department of Corrections updated its execution protocol in January 2013 to a two-drug instead of three-drug injection. The method calls for a barbiturate like pentobarbital to be followed by a paralytic agent called pancuronium bromide.

The revised plan also requires a qualified person to determine whether an inmate has lost consciousness. State attorneys have said it adequately addresses Sherlock's concerns.

Ron Waterman, one of two attorneys representing Smith and Gollehon, argues that the updated injection procedure is still invalid because pentobarbital is not an ultra-fast acting barbiturate, as Montana law requires.

Smith was sentenced to death in 1983 in the double-homicide of two Blackfeet Indian men. Gollehon was sentenced to death in 1992 for beating to death an inmate at the Montana State Prison.

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