U.S. in 'waning days of the death penalty,' says lawyer of Alberta man on death row

A lawyer for a Canadian on death row in Montana believes it's only a matter of time before the death penalty in much of the United States is abolished and his client will be free to return home.

Ronald Smith, 60, is originally from Red Deer, Alta., and has been on death row since 1983 for fatally shooting Harvey Madman Jr. and Thomas Running Rabbit while he was high on LSD and alcohol near East Glacier, Mont.

He originally asked for and was sentenced to death but later changed his mind and has been fighting execution ever since. He has had a number of execution dates set and overturned.

Most of the United States has moved beyond this and there comes a time where the courts are going to say this is in fact cruel and unusual punishment.- Ron Waterman, ACLU

"I think we're in the waning days of the death penalty in the United States," said Ron Waterman, a senior counsel with the American Civil Liberties Union who has represented Smith since 2008.

"Last year, I think we've only had 20-some executions and those are really isolated to only three or four states, and only three or four counties in those states.

"Most of the United States has moved beyond this and there comes a time where the courts are going to say this is in fact cruel and unusual punishment."

'Excruciating and terrifying' death

Lethal injection has been the sole method of execution in Montana since 1997. It is the only state that specifies the death penalty must be accomplished by an "ultra-fast-acting" barbiturate.

Executions in Montana have been on hold since 2008 when the civil liberties union filed legal action that argued that the sedative pentobarbital, which was being proposed by the state as a replacement for the previously used sodium pentothal, could lead to an "excruciating and terrifying" death.

District Court Judge Jeffrey Sherlock sided with the civil liberties group and rejected an appeal by the state of Montana.

Sherlock has now sanctioned the state over its year-long delay in complying with a court order to turn over documents that could reveal if there was manipulation of an expert witness.

The group questioned whether the testimony of Roswell Evans was manipulated at trial to bolster the state's unsuccessful claim that pentobarbital was suitable for executions.

"We've got some emails and we're now looking at those and trying to ascertain what else is there," Waterman said.

"They're going to make us unpack this whole thing piece by piece so they're not going to go easily.

"I don't know that it's going to have any direct or immediate impact on the case itself."

Waterman said it is more a case over legal fees and whether Montana acted in a vexatious manner.

Current ban unlikely to change any time soon: Waterman

As for Smith's future, Waterman doesn't see the current ban on executions in Montana changing any time soon. It would require a new statute being introduced and adopted by both sides of the legislature and would have to be signed by the governor.

"They didn't change the statute during the last legislative session so the next time up is 2019. I'm not hearing anybody really being that keen about changing (it)."

The Canadian government officially intervened on Smith's behalf last year when it asked Gov. Steve Bullock to grant him clemency.

"My hope would be ultimately that we can find clemency for Ron so that he can move back to Canada," Waterman said.

"If the death penalty is abolished he would be eligible to be moved right away."