Capital punishment is a legal penalty in the U.S. state of Montana.
The state has not carried out an execution in over nineteen years, with its last execution carried out in 2006, when David Thomas Dawson was executed. Montana currently has two men on death row: Ronald Allen Smith and William Jay Gollehon. Since 2015, there has been a de facto moratorium on capital punishment in Montana as a result of a court ruling that found that the state's lethal injection method violated the Montana Constitution.
History 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. As a result of the Furman decision, the overall application of the death penalty in the United States was suspended.Id. The suspension prompted states to amend their death penalty statutes to comply with the Furman decision.Id.
In 1974, Montana amended its death penalty law and instituted a mandatory death penalty statute for the offenses of deliberate homicide and aggravated kidnapping.State v. McKenzie, 608 P.2d 428, 448-49 (Mont. 1980), overruled by State v. Van Kirk, 32 P.3d 735; Andrea Galbo, Death After Life: The Future of New York's Mandatory Death Penalty for Murders Committed by Life-Term Prisoners, 13 FORDHAM URB. L.J. 597, 604 n. 61 (1985).
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."Gregg v. Georgia, 428 U.S. 153, 169 (1976.)
Execution methods Until the mid-nineteen hundreds, Montana utilized hanging as its method of execution for individuals sentenced to death. Montana's last execution by hanging was carried out in 1943.Id.
In 1983, Montana introduced lethal injection.MONT. CODE ANN. § 46-19-103(3) (1983); Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us, 63 OHIO ST. L. J. 63, 196 (2002). On May 10, 1995, the first person put to death by lethal injection in Montana was Duncan Peder McKenzie Jr., who was convicted of deliberate homicide and aggravated kidnapping.State v. McKenzie, 894 P.2d 289, 290 (Mont. 1995).
In 1997, lethal injection became the sole method of execution in Montana.MONT. CODE ANN. § 46-19-103(3) (1983) (amended 1997); Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us, 63 Ohio St. L. J. 63, 196 (2002). The 1997 amendment removed the following language from Montana Code Annotated § 46-19-103(3): "hanging the defendant by the neck until he is dead or, at the election of the defendant."MONT. CODE ANN. § 46-19-103(3) (1983) (amended 1997).
Today, lethal injection remains Montana's only recognized method of execution.MONT. CODE ANN. § 46-19-103 (3) (2023). No other state, aside from Montana, requires the use of "an ultra-fast-acting barbiturate" for an execution by lethal injection.
Although lethal gas was authorized as a method of execution in 1983, Montana has never carried out any executions under this method.
Legal process
Capital crimes Under Montana law, deliberate homicide is punishable by death when committed:Montana Code § 46-18-303. Aggravating circumstances. "by an offender while in official detention;" "by an offender who had been previously convicted of another deliberate homicide;" "by means of torture;" "by an offender lying in wait or ambush;" "as a part of a scheme or operation that, if completed, would result in the death of more than one person;" "by an offender during the course of committing sexual assault, sexual intercourse without consent, deviate sexual conduct, or incest, and the victim was less than 18 years of age." against "a peace officer killed while performing the officer's duty." The offense of aggravated kidnapping, in which the victim or a rescuer dies, is also punishable by death.MONT. CODE ANN. § 46-18-303(2) (2023).
Montana law still provides the death penalty for the following non-homicidal crimes:
attempted deliberate homicide, aggravated assault, or aggravated kidnapping committed while in detention, and such person has a prior deliberate homicide conviction or was found to be a persistent felon; andMONT. CODE ANN. § 46-18-303(3) (2023).
sexual intercourse without consent by a person with a prior record for sexual intercourse without consent, which resulted in serious bodily injury.MONT. CODE ANN. § 46-18-303(4) (2023).
The death penalty for these non-homicidal crimes is no longer constitutional since the 2008 U.S. Supreme Court case Kennedy v. Louisiana.
Montana has not established a minimum age for someone to receive a death sentence.Thomas P. Bonczar & Tracy L. Snell, Bureau of Just. Stat., Capital Punishment, 2004 (Table 3), https://bjs.ojp.gov/content/pub/pdf/cp04.pdf. The state, however, does consider the age of the offender to be a mitigating circumstance if the offender was under 18 at the time of the offense.MONT. CODE ANN. § 46-18-304(1)(g) (2023).
Sentencing A hearing is held to determine whether the death penalty should be given.MONT. CODE ANN. § 46-18-301 (2023). Before 2001, the trial judge reached this decision alone.Marc R. Shapiro, Re-evaluating the Role of the Jury in Capital Cases After Ring v. Arizona, 59 N.Y.U. ANN. SURV. AM. L. 633, 647 (2004). 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.Id. MONT. CODE ANN. § 46-18-305 (2023).
Clemency A person sentenced to death in Montana can seek clemency from the governor by submitting an application for clemency provided that any automatic review action conducted by the Montana Supreme Court of the person's sentence of death has ended.MONT. CODE ANN. § 46-23-301(2) (2023). The application for clemency must be submitted to the Montana Board of Pardons and Parole within 10 days following the district court's determination of the date upon which the person is expected to be executed.MONT. CODE ANN. § 46-23-301(2) (2023). Only the person sentenced to death, their attorney, or a "court-appointed next friend, guardian, or conservator acting on the person's behalf" can submit an application for clemency.Id. While the Montana Board of Pardons and Parole may advise the governor on whether to grant or deny an application for clemency, the ultimate decision rests with the governor.MONT. CODE ANN. § 46-23-301(4) (2023).
To date, Montana has only granted 1 clemency. In December 1988, Governor Ted Schwinden granted clemency to David Cameron KeithAdam M. Gershowitz, Rethinking the Timing of Capital Clemency, 113 MICH. L. REV. 1, 25 (2014). and reduced his sentence to life in prison without the possibility of parole. David Cameron Keith received a sentence of death for aggravated kidnapping in March 1988State v. Keith, 754 P.2d 474, 475 (Mont. 1988) (On March 23, 1988, David Cameron Keith's sentence of death for deliberate homicide was reversed). and was scheduled to be executed on January 20, 1989. The Montana Board of Pardons and Parole recommended clemency for David Cameron Keith, in part because he was "partially paralyzed and nearly blind from gunshot wounds, ha[d] undergone a legitimate religious conversion and may have shot his victim in reflex to being shot himself." At the time, Governor Schwinden stated his decision to grant David Cameron Keith clemency was "based on his review of Keith's file, a meeting with Keith at the state prison [] and a telephone conversation with the family of the victim, Harry Lee Shryock Jr."Id.
In 2012, Ronald Allen Smith – one of two men presently on death row – requested clemency. On May 2, 2012, Smith's clemency hearing was held.Id. Following Smith's hearing, the Montana Board of Pardons and Parole made its recommendation to then-Governor Brian Schweitzer that Smith's application for clemency should be denied. Governor Brian Schweitzer did not render a decision on Smith's request for clemency.Bill Graveland, Outgoing Montana governor taking no action on clemency application from Ronald Smith, CANADIAN PRESS (Jan. 7, 2013)
People executed in Montana From 1608 to 1976, Montana executed 71 people by hanging.Executions in the U.S. 1608-2002: The EPSY File Executions by State, DEATH PENALTY INFO. CENTER, https://dpic-cdn.org/production/legacy/ESPYstate.pdf. Since 1976, three males have been executed in Montana by lethal injection: Duncan Peder McKenzie Jr., Terry Allen Langford, and David Thomas Dawson.
On May 10, 1995, Duncan Peder McKenzie Jr. was the first person executed in Montana by lethal injection.Id. McKenzie Jr. was sentenced to death for deliberate homicide and aggravated kidnapping.State v. McKenzie, 894 P.2d 289, 290 (1995). He was 43 years old when he was executed.
On February 24, 1998, Terry Allen Langford was the second person to be executed in Montana by lethal injection.Id. Langford was sentenced to death for two counts of deliberate homicide and two counts of aggravated kidnapping.Langford v. State, 951 P.2d 1357, 1359 (1997). He was 31 years old when he was executed.
On August 11, 2006, David Thomas Dawson was the third person to be executed in Montana by lethal injection.Id. Dawson was sentenced to death for three counts of deliberate homicide and three counts of aggravated kidnapping.State v. Dawson, 133 P.3d 236, 239 (2006). He was 49 years old when he was executed.
People on death row in Montana There are presently two men on death row in Montana:Tracy L. Snell, Bureau of Just. Stat., Capital Punishment, 2021 – Statistical Tables (Table 1), https://bjs.ojp.gov/document/cp21st.pdf. William Jay Gollehon and Ronald Allen Smith. Both men have been on death row for more than three decades.
In 1983, Ronald Allen Smith was sentenced to death for two counts of aggravated kidnapping and two counts of deliberate homicide for murdering two Native American men while on LSD.State v. Smith, 705 P.2d 1087, 1089-90 (Mont. 1985). On November 3, 2010, a judge set Smith's execution date for January 31, 2011. The execution was stayed because of Smith's ongoing litigation about the constitutionality of Montana's lethal injection method.
In 1992, William Jay Gollehon was sentenced to death for the deliberate homicide of another prisoner.State v. Gollehon, 864 P.2d 249, 254 (1993).
Legal challenges to Montana's lethal injection method In 2008, the ACLU of Montana brought a civil legal action – Smith v. Ferriter – on behalf of Ronald Allen Smith, which alleged that Montana's lethal injection method violated Montana's Constitution.Separation of Church and State, ACLU 6 (2012), https://www.aclumontana.org/sites/default/files/field_documents/fall2012final.pdf. William Jay Gollehon later joined the suit.
In 2011, Ronald Allen Smith's execution was "stayed" because of the ongoing lawsuit.Separation of Church and State, ACLU 8 (2012), https://www.aclumontana.org/sites/default/files/field_documents/fall2012final.pdf.
On September 6, 2012, the Montana First Judicial District Court handed down its decision on the case.Order on Cross-Motions for Summary Judgment, Smith v. State of Montana, Department of Corrections, No. BDV-2008-303 (Mont. Dist. Sept. 6, 2012), https://standdown.typepad.com/LI-Smith_v_Montana-Order.pdf. 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.Id. at 25-26.