Montana has no functioning death penalty. Since 2009, the lethal injection portion of the death penalty has been stopped because the drugs required by statute are not available. Even if these drugs somehow became available, a highly unlikely prospect, Montana’s capital punishment regime contains numerous additional elements that are at odds with U.S. Supreme Court decisions. In short, Montana’s death penalty system is broken beyond repair.
Capital punishment is off the table as an actual punishment, but because the legislature has not formally abolished it, the legal structure governing the crimes identified as capital offenses and the processes to deal with those crimes remain. That is a problem.
Once a county attorney decides to charge a person with a capital offense, safeguards and standards for capital offenses are triggered. These additional safeguards, designed to reduce the likelihood of the state executing an innocent person, make a capital case much more expensive than a case where the maximum penalty is life without parole. Over the past decade, there have been at least four individuals charged with a capital offense. The prosecution of these offenses has cost the taxpayers at least $5 million, although none of the defendants were convicted of a capital offense.
There is one solution — abolish the death penalty and replace it with a punishment of permanent imprisonment. This move would save tax dollars without undermining public safety.
Abolition of the death penalty will not adversely affect the prosecution of criminal defendants. Indeed, it will not change the landscape of the criminal law at all since for at least the past decade, the criminal justice system has functioned without an effective death penalty. Abolition would remove the ability of county prosecutors to threaten an accused of seeking the death penalty, and that would be a good thing. Such conduct has been challenged as being ethically questionable and given the reality of not having a functioning death penalty, any such threat advanced now would be minimized by any knowledgeable criminal defense counsel.
There is no question that the death penalty does not act as a deterrent. The death penalty does not deter homicide. Between 2010 and 2016 the murder rate was 23 percent lower in non-death penalty states compared to death penalty states.
Montana has paid the price of having capital offenses on the books without any ability to carry out a death sentence. When county attorneys charge individuals capitally and then have to back down, they have spent substantial public funds to provide the defense required because a capital offense was charged.
Life in prison without possibility of parole is the option the majority of citizens support in lieu of the death penalty. It is time that Montana should join close to half of the states in the union and abolish the death penalty. Our capital punishment system is broken. Montana has no functioning death penalty. The Legislature should act and remove from the books a broken set of laws currently incapable of being enforced.
Ron Waterman, Helena
Larry Epstein, Essex