The American Civil Liberties Union began a lawsuit in 2008 on behalf of Smith and another death-row inmate in Montana. It argued the lethal injections the state uses are cruel and unusual punishment and violate the right to human dignity.
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District court Judge Jeffery Sherlock ruled in September 2012 that the injections were unconstitutional. He pointed to a lack of training for individuals who administer the drugs and a discrepancy over whether two or three drugs should be used.
The lawsuit was on hold while Sherlock considered whether the state can change the way it carries out executions without seeking the approval of politicians in the legislature. The civil liberties group argued the state needs that legislative approval.
The judge has now rejected both arguments and ordered a trial to look into whether the new drugs being proposed by the state comply with language in execution protocol requiring an "ultra-fast-acting barbituate."
Lawyer says this is not the end
"It's not good news, but it's not the end. It basically says what we've been saying all along – that there's an inconsistency about what the statute says and what the drugs they're proposing to use," Ron Waterman, lead lawyer for the civil liberties union, told The Canadian Press on Thursday.
"The court says it can't decide that issue without going to a hearing to allow the parties to fully talk about what drugs they are using or proposing to use, and how those drugs comply with Montana's statutory requirement of an ultra-fast-acting drug," he added.
"I'm still somewhat at ease over that issue because I am familiar enough with these drugs to know all of the drugs they are proposing to use – and not one of them, except sodium pentothol, which is not available, is an ultra-fast-acting drug."
Waterman said a scheduling hearing is to be held in the next couple of weeks.
"I'm in absolutely no rush to get to a hearing on this."
Smith, 56, was convicted in 1983 for shooting Harvey Madman Jr. and Thomas Running Rabbit while he was high on drugs and alcohol near East Glacier, Mont.
He had been taking 30 to 40 hits of LSD and consuming between 12 and 18 beers a day at the time of the murders. He refused a plea deal that would have seen him avoid death row and spend the rest of his life in prison.
Three weeks later, he pleaded guilty. He asked for and was given a death sentence. Smith later had a change of heart and has had a number of execution dates set and overturned.
Waterman said the case appears to be never-ending, but there isone way to bring it to a close.