HELENA — Ed Sheehy Jr. still can't bring himself to talk about what it was like to defend death-row inmate David Dawson, who in August became the 74th person executed in Montana.
He spoke Wednesday before a crowded hearing room at the state Capitol on a bill to abolish the death penalty in Montana.
Sheehy, an opponent of the death penalty, has defended eight Capitol punishment cases in Montana during his career as a public defender. What was so ethically and morally challenging about Dawson's case, however, was that for the first time, Sheehy found himself fighting for his client's right to die.
"I was nearly in tears when I argued in Helena," said Sheehy, who fought legal challenges to halt Dawson's execution on the basis that lethal injection was unconstitutional in Montana. "It has done much emotional and mentally to me."
Only three death-row inmates have died by lethal injection in the state. The other 71 were hanged. Montana has two inmates on death row.
Although the Legislature has debated, discussed and argued the moral and economic aspects of the death penalty for decades, supporters Wednesday brought a new argument to the table: That lethal injection can be cruel and unusual punishment. Some states have halted executions as the high courts grapple with whether lethal injection is inhumane, said Betsy Griffing, ACLU legal director.
Lawmakers Wednesday heard from families of murder victims; as well as Unabomber Ted Kaczynski's brother, David Kaczynski; former U.S. Senate candidate Paul Richards; clergy members; former state Supreme Court justices and a former Texas prosecutor who sought the death penalty against a man, only to later see a key witness recant his testimony. Most testified in favor of eliminating the death penalty.
Opponents to the bill argue that the death penalty can be used as leverage for prosecutors, is an eye-for-an-eye punishment and will keep criminals from re-offending.
"When you take someone's life, your life is required from you," said Abel Ferch of Butte.
Already, 12 states across the county have abolished the death penalty, including North Dakota. Montana's seven Indian reservations do not have the death penalty. Last year, six states and the District of Columbia put executions on hold because of pending lawsuits or studies on whether lethal injection is cruel and unusual.
The hearing in Montana took place the same day that a Colorado House committee voted to abolish the death penalty and use the money saved in legal wrangling over death penalty cases to pursue unsolved murder cases instead.
Montanta's constitution allows for a two-drug lethal injection, but the state uses three: The first is a sedative. The second paralyzes. A third, which can cause an intense burning sensation if the sedative wears off too quickly, stops the heart. That brings into question the constitutionality of lethal injection in Montana, said Helena attorney Ron Waterman, who represented the 72nd person executed in Montana, Duncan McKenzie in 1995, during his appeals to the state Supreme Court.
Whether or not the person is totally unconscious at the point the third drug is administered strikes at the heart of whether lethal injection is humane. Sheehy watched Dawson begin snoring before the third drug was pumped into his veins.
"Any medical examiner would tell you that with asphyxiation ... snoring is a clear indication that that person is suffering and trying to regain their breath," he said.
U.S. District Judge Donald Molloy already expressed concern regarding the constitutionality of lethal injections in Montana, and Waterman predicted that once all the courts rule, executions will no longer occur in the state.
"We should, for no other reason, abolish the death penalty now because it will never again be carried out in this state," he said.
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