Idaho executions in limbo after bill to hide lethal injection drug suppliers stalls
A controversial bill that would grant absolute legal confidentiality to drug suppliers and all lethal injection participants in Idaho executions stalled in committee Wednesday, leaving the proposed law — and with it the state’s ability to fulfill a death sentence — in limbo.
House Bill 658, which passed the Idaho House in a narrow vote last month, failed to make it out of a Republican-dominated state Senate panel on a 4-4 tie vote. The committee’s two Democrats were joined by two Republicans to hold the bill, with one absence from the nine-member committee. The bill needed approval from a majority to move forward to the Senate floor for a vote.
If passed and signed by the governor, the bill would sanction Idaho to further shield from public disclosure any identifying details for lethal injection drug providers and manufacturers, as well as medical staff who help facilitate a prisoner’s execution. Most pharmaceutical companies stipulate their products not be used in lethal injections, and many medical certification groups and trade organizations discourage members — including pharmacists — from assisting in executions.
The legislation, opponents highlight, also would preclude judges, attorneys who are defending death row inmates appealing their sentences and anyone outside the Idaho Department of Correction from obtaining the information needed to scrutinize the safety and legality of the state prison system’s execution practices. The bill would exempt such documents from release under Idaho’s public records law.
“Any time we decrease transparency, any time we veil it, shroud it, there are problems,” Sen. Melissa Wintrow, D-Boise, said Wednesday in casting a no vote. “And people may have good intent, but the public have the right to examine that, especially in this case.”
Through the process, proponents have characterized the bill as a way to satisfy concerns from lethal injection drug suppliers, who provide the state with chemicals needed to pursue Idaho’s only approved method of execution. Of the 24 U.S. states that maintain active use of capital punishment, 19 have a similar shield law, according to the bill’s House sponsor, Rep. Greg Chaney, R-Caldwell.
Voting against the bill, proponents said, would limit the anonymity suppliers seek to sell the drugs to the state and, essentially, prohibit capital punishment from continuing in Idaho. That is, unless the Legislature considers an alternative execution method, as a few other states have approved in recent years, including reintroducing a firing squad.
“We weren’t ambiguous on the record in the House debate what the stakes were,” Chaney told the Idaho Statesman in a phone interview Thursday. “If the bill does not advance, I wouldn’t be surprised to see that (firing squad) proposal.”
Retired judge questions bill’s purpose
A public hearing on the bill Wednesday went longer than an hour, and included more than 30 minutes of testimony against the proposed law. Opponents included the American Civil Liberties Union of Idaho, the Idaho Press Club and the Idaho Association of Criminal Defense Attorneys.
“House Bill 658 is an admission that lethal injection only works if the public knows nothing about how it’s carried out,” Teresa Molitor, a lobbyist for the Idaho Association of Criminal Defense Lawyers, told the Senate panel. “More secrecy just makes a bad method worse.”
Josh Tewalt, director of the Idaho Department of Correction, testified before the committee Wednesday that protecting execution drug suppliers was necessary to combat the public pressure that might deter them from providing the chemicals to the state.
Tewalt previously acknowledged the state does not currently possess lethal injection drugs. He said Idaho has been unable to obtain them after two prior sources for executions in 2011 and 2012 were named once the Idaho Supreme Court forced disclosure of identifying documents in a public records lawsuit.
“You can look at recent history in Idaho where we’ve publicly unmasked the suppliers from two executions over a decade ago and seen the response to that,” Tewalt said. “It provides a pretty clear roadmap for people who would otherwise be willing to participate — what could be in store for them — should their identities be known.”
Retired U.S. District Court of Idaho Judge Ronald Bush, who presided on the appeals case of death row inmate Paul Rhoades, also testified against the bill Wednesday. The state executed Rhoades in November 2011 by lethal injection after Bush denied the convicted triple-murderer’s injunction request.
But, on Wednesday, the former judge questioned the purpose and intent of the proposed law.
“It still comes back to, ‘Why? Why do we need to have that done?’ “ Bush asked the committee of removing public review of the drug source. “If the reason is because that’s the only way that we can get the chemicals to put someone to death this way, then the next question we should be asking very earnestly is, ‘Why is that?’ and, ‘Should we be concerned about that?’ And I would submit to you: Yes, we should.”
State Sen. Grant Burgoyne, D-Boise, made the motion to hold the bill in committee. He said he is not against the death penalty in all cases, but opposes use of lethal injection as the method.
“I think lethal injection is a lie,” Burgoyne said Wednesday. “It is as if we are selling the idea that this is just putting your pet to sleep. That’s not what it is. … It’s a terrible position to put the state of Idaho in. It’s wrong, it’s unfair, it needs to stop.”
‘We respect the process,’ IDOC says
The bill was co-authored by Department of Correction officials and the Idaho attorney general’s office. The attorney general’s office declined to comment after the bill failed to advance. A spokesperson for the Department of Correction referred the Statesman back to the director’s testimony before the committee on Wednesday, and a follow-up request for an interview with Tewalt received no response.
“We respect the process,” said Jeff Ray, the department’s spokesperson. “It will be up to those policymakers to decide what’s next for the legislation.”
Sen. Todd Lakey, R-Nampa, who also chairs the Senate committee that held the bill, co-sponsored the legislation with Chaney. He told the Statesman by email that he continues to support the bill.
“I do believe this is necessary to maintain Idaho’s public policy and ability to have capital punishment as a sentence in appropriate circumstances,” Lakey said.
Sen. Patti Anne Lodge, R-Huston, was absent during the committee vote. She told the Statesman she hadn’t read the bill and declined to say whether she would provide her support if it resurfaced.
“I can’t tell you that right now until I see it again,” Lodge said.
The bill is now scheduled for another vote in the Senate committee Monday afternoon, but with no additional public testimony. The agendized re-vote has raised procedural questions among opponents, but, as committee chair, Lakey said he believes he still controls the bill, like any other.
If HB 658 does not win a committee majority before the end of the Legislative session, it would die at adjournment.
“I begin to have some anxiety what that means for the death penalty in Idaho,” Chaney said. “The death penalty will be in great limbo, and would have more uncertainty around it than the resolution of this bill in the Senate committee. And so, if (this bill) is not the solution, what is the solution?”
State Politics Reporter Ryan Suppe contributed to this report.
This story was originally published March 9, 2022 at 6:45 PM.
