By Laura Zuckerman
(Reuters) - The attorney for the two inmates on death row in Montana on Monday filed a legal challenge to the state's new death penalty protocol, arguing that it violates a constitutional ban on cruel and unusual punishment.
Montana's three-drug lethal injection procedure was struck down last year by a state court judge for differing from a two-drug protocol spelled out in law in the state.
The ruling effectively suspended executions in Montana, which has two inmates on death row and has executed three since the death penalty was reinstated in 1976.
Ron Waterman, attorney for the two death row inmates - Ronald Allen Smith and William Gollehon - said the new lethal injection procedure threatens to "be a long and very cruel way of taking an individual's life" by slowly suffocating the person.
Waterman and attorneys with the American Civil Liberties Union of Montana argued in court filings that the first of two drugs would render a condemned prisoner unconscious while the second would paralyze him. Under the three-drug method, a third chemical is administered to stop the heart, attorneys said.
Montana Attorney General Tim Fox argued in court documents that the state has addressed and rectified faults spelled out by Sherlock.
He said expert evidence shows the first of the two drugs, a fast-acting barbiturate, would "cause virtually all persons to stop breathing immediately and die."
In making his ruling last September, State District Court Judge Jeffrey Sherlock did not question the constitutionality of the death penalty in Montana.
Sherlock found that the state's three-drug execution procedure differed from a two-drug protocol spelled out in law, which he said "increases the likelihood of confusion and error."
He also faulted the state for allowing a prison warden with no medical training to determine a prisoner was unconscious before a fatal drug was administered and for not requiring a prison official setting up the execution to have experience with the intravenous process.
The Montana Department of Corrections earlier this year revised its lethal injection policy to abide by Sherlock's order, instituting a two-drug method and mandating certain training or experience for prison officers testing for unconsciousness and for the intravenous procedure.
California last week announced it would no longer defend in court a challenge to its three-drug injection procedure but would move to adopt a single-injection method like such states as Arizona and Ohio, according to the Death Penalty Information Center.
(Reporting by Tim Gaynor; editing by Christopher Wilson)