Update: New Idaho law would help shield lethal injection drug sources, execution workers
A pair of Idaho lawmakers are seeking to strengthen the state’s ability to keep the identity of lethal injection drug suppliers, medical personnel and prison officials who take part in an execution confidential from any form of public disclosure.
The bill, sponsored by Rep. Greg Chaney, R-Caldwell, and Sen. Todd Lakey, R-Nampa, would further protect those who assist Idaho with executing a prison inmate, or participate in the lethal injection process, from being publicly named. The proposed law also would shield individuals, including pharmacists, doctors, anesthesiologists and emergency medical technicians — each prohibited by their respective professional associations from involving themselves in executions — from any discipline concerning their state licenses.
Chaney on Monday told a panel of lawmakers that it’s become more difficult to find suppliers willing to provide the state with the drugs necessary to perform a lethal injection. A House committee on Monday unanimously approved introducing the bill.
“Opponents of the death penalty have engaged a new strategy in making the death penalty go away,” Chaney told the committee Monday, “and that is to leverage woke cancel culture to shame providers of lethal injection drugs away from providing those drugs for executions for states.”
Groups including the American Civil Liberties Union, which opposes the use of capital punishment, have raised questions about keeping the source of execution drugs confidential, based largely on health and safety concerns for inmates. The drug suppliers, who are compensated for their services with taxpayer money, should not receive comprehensive protections, the ACLU and other anti-death penalty organizations argue.
“This is a shameful and anti-democratic bill,” Ritchie Eppink, a senior attorney with the ACLU of Idaho, told the Idaho Statesman in a written statement. “Idaho taxpayers deserve a right to know where their money is going and to make up their own minds about the state’s lethal injection practices. This bill is but more evidence that if the public knew what corrections officials were up to, they would be appalled.”
The nonprofit Federal Defender Services of Idaho, which represents the majority of the state’s eight death row inmates, declined to comment on the bill.
The Idaho Department of Correction, which houses death row inmates at the Idaho Maximum Security Institution near Kuna, deferred comment Monday to the Republican-led Idaho attorney general’s office. Scott Graf, spokesperson for the attorney general’s office, said the bill was the result of “ongoing, collaborative discussions” between their office and prison leadership.
“The death penalty remains the law of the land in Idaho,” Graf told the Statesman by email. “If passed, this legislation will bring Idaho in line with a number of other states that have taken similar steps to ensure their ability to carry out the laws enacted by their legislatures.”
Of the 24 U.S. states that maintain active use of capital punishment, 19 have some form of a supplier or executioner identity protection on the books, according to Chaney.
Idaho has history of covert execution practices
Issues surrounding lethal injection drug costs and sources came to the forefront in Idaho in 2018, when a University of Idaho law professor filed a public records lawsuit against the Department of Correction. The state prisons agency had declined to release documents that could lead to identifying its drug suppliers in Idaho’s last two executions, in 2011 and 2012.
Aliza Cover, the University of Idaho law professor, sued IDOC and was represented by the ACLU of Idaho. After a three-year legal battle, the Idaho Supreme Court ruled in their favor, compelling IDOC to release all relevant documents, and awarding more than $170,000 in attorneys fees to Cover.
“The lawsuit resulted in an important decision from the Idaho Supreme Court reaffirming the strength of Idaho’s Public Records Act, which has an impact well beyond the death penalty context,” Cover previously told the Statesman by email. “I’m hopeful that the lawsuit has played a role in promoting government transparency and accountability in Idaho across the board.”
The records released in the lawsuit later led to the identification of two compounding pharmacies with dubious regulatory histories that provided the drugs in Idaho’s past two executions — one located in Salt Lake City, and another in Tacoma, Washington. Together, the state paid more than $20,000 in cash for the execution drugs, the documents and lawsuit testimony revealed.
In response to the lawsuit, IDOC moved to tighten its records exemption rules for information related to executions — specifically information that could identify its drug sources. The agency’s appointed policymaking board adopted the amended public disclosure rules in May 2019.
Those changes were later approved with limited opposition by House and Senate judiciary committees, chaired by Chaney and Lakey, in January 2020. But Chaney and Graf both told the Statesman that a statutory fix better guarantees through legal authority the anonymity of drug suppliers and execution participants.
“In the hierarchy of laws, statutes are stronger and more permanent than administrative rules,” Graf said. “This proposal bolsters Idaho’s current policy by giving it the strength of state law.”
During the 7-minute committee hearing Monday, Rep. Chris Mathias, D-Boise, asked Chaney for an example of a group working to publicly reveal an execution drug source that the proposed law would protect. Mathias is one of just two Democrats on the 14-member House State Affairs Committee.
Chaney, an attorney specializing in personal injury and civil litigation, said he could not provide a specific example. The four-term representative is running for the open state Senate seat in Caldwell.
“They are anti-death penalty organizations who work to identify and then bring public attention, either through social media or protest, to bear on the pharmaceutical companies,” Chaney said. “They’ve been successful enough around the country that the word that they’re giving to our Department of Correction is, ‘Don’t even call us if you cannot provide us with anonymity.’ ”
If Idaho is no longer able to obtain lethal injection drugs to fulfill death sentences, Chaney added, the state may need to resort to adding backup methods of execution, such as a firing squad, hangings or the electric chair. Mississippi added the firing squad alternative in 2017, and South Carolina did the same last year.
Repealing the death penalty would be another option, Chaney said, but not one he backs, nor one he thinks would be supported by Idaho’s conservative Legislature, which would have to pass a law ending capital punishment in the state.
“As long as that is our policy, we must make way for the practical ability to carry it out,” he said.
Pizzuto granted reduced sentence
As recently as this past May, the state attempted to execute another inmate — Gerald Pizzuto, 66, who has sat on Idaho death row since 1986. He was granted a stay of execution when the Idaho Commission of Pardons and Parole agreed to hold a clemency hearing for the convicted double-murderer.
It remains unclear if the Idaho Department of Correction possesses the lethal injection drugs to execute an inmate. Prison officials have continually declined to address the issue, citing the department’s public disclosure exemption rules around lethal injection drugs.
A state district court judge recently granted Pizzuto, who is terminally ill with late-stage bladder cancer and confined to a wheelchair, a reduced sentence of life in prison without the chance of parole. The decision followed the parole board’s 4-3 vote in December to commute Pizzuto’s death sentence to life in prison, which Gov. Brad Little rejected the same day.
Pizzuto’s attorneys with the Federal Defender Services of Idaho, however, challenged in court the governor’s authority to reject a clemency recommendation, based on the language of the Idaho Constitution. Judge Jay Gaskill of Idaho’s Second District Court ruled in their favor, barring the state from seeking another death warrant for Pizzuto.
The attorney general’s office has appealed the state district court judge’s decision to the Idaho Supreme Court. A date has yet to be set for that hearing.
This story was originally published February 14, 2022 at 5:19 PM.
