Betsy Griffing [legal program director, ACLU of Montana]: "This challenge to the lethal injection protocol is based primarily upon violation of the Montana Constitution, rather than violations of the United States Constitution. We feel that two provisions in the Montana Constitution make this challenge particularly strong. First, we are claiming that the three-drug formula used by the Montana Department of Corrections violates the state constitutional prohibition against cruel and unusual punishments. This state constitutional provision has been interpreted by our Montana Supreme Court as granting broader protections than the US Constitution. The basis for this broader protection is the provision in the Montana Constitution guaranteeing the right of human dignity. Art. II Section 4, of the Montana Constitution states, in the first sentence, that "The dignity of the human being is inviolable." The Montana Supreme Court has interpreted this right of dignity as enhancing or broadening the protection against cruel and unusual punishments in our jails and prisons. In the Smith case, we are claiming that this elevated protection should apply when the Montana Courts look at the lethal injection process as well. If the Courts do evaluate the lethal injection process under this standard, we believe they will conclude the process is cruel and unusual as it exposes the condemned inmate to the very great and grave possibility of significant pain and suffering during the execution.
Also, the lethal injection process in Montana is shrouded in secrecy. Part of this challenge is to seek, under the Montana Constitutional "right to know provision" (Art. II, Section 9, Mont. Const.), full disclosure of the training and qualifications of the execution personnel. Currently, the Montana DOC has not provided any information on the training and qualifications of the executioner or execution team. While there is a statute that provides for the confidentiality of the identity and training of the executioner, we believe that statute is unconstitutional under the "right to know" provision. We believe that it is important that the people of Montana be fully informed about how executions are carried out in their name."