Montana State District Judge Jeffrey Sherlock didn't like what he saw. It wasn't that he was questioning the constitutionality of the death penalty. What he didn't like were the procedures used by the state to murder inmates.
The Montana state legislator passed a statute that defined just how the state would carry out its lethal injection protocol. The legislature called for the use of a two-drug cocktail. Unfortunately, the state was using a three-drug cocktail, instead. Judge Sherlock questioned whether the three-drug cocktail increased the margin for error.
Then there was the little matter of the warden deciding whether the inmate was unconscious before injecting the lethal drug. A warden without medical training or experience deciding whether or not the drugs are doing what they are supposed to do. What could possibly go wrong with that scenario?
Oh, and why not add that the warden isn't required to have any training in proper intravenous procedure?
According to Judge Sherlock, the deviation between the official state protocol and the manner in which the Department of Corrections operated created "a substantial risk of serious harm."
I don't think we're ever going to see a repeat of Furman in which the US Supreme Court declared the death penalty unconstitutional. We're long past the argument that the use of the death penalty is "unusual."
But what I think we may see over the horizon are more and more successful attacks against the procedures used by states to murder their inmates. At some point the cost of defending death penalty protocols against legal challenge will be greater than the perceived utility of jabbing a needle in someone's arm and pumping them full of poison.
Most politicians don't have the backbone or moral courage to stand up and tell the public that killing inmates doesn't do any good. But they may be able to tell voters that keeping the death penalty on the books is costing the state millions to defend. And maybe that's the way to abolish the barbarism.