There’s a reason Montana attorneys are not seeking the death penalty even in extremely gruesome cases involving multiple murders. Missoula County Attorney Kirsten Pabst, says right now, death penalty charges can’t be used because of a Supreme Court decision out of Florida.

"Because Florida had sort-of a bifurcated system in which the judge makes the final determination about the aggravating circumstances, then it violates the right to a trial by jury. Montana has almost the exact same statutory scheme: our jury decides guilt or innocence and then we have to prove after a conviction the aggravating circumstances in order to apply for the death penalty."

The case Pabst refers to is a 2016 decision called Hurst v. Florida where the Supreme Court voted 8 -1 that Florida was giving judges a power that juries should have.

"The U.S. Supreme Court said in no uncertain terms that that is unconstitutional and that it violates a defendant's right to a trial by jury," Pabst said. "A true trial by jury according to the Supreme Court is when a jury decides each and every fact that leads to the ultimate penalty."

Before the death penalty can be used again, the Montana State legislature will likely have to change the statutory structure in which the death penalty is applied