Idaho bill to shield lethal injection drug suppliers in executions heads to Senate
Idaho lawmakers breathed new life into a contentious bill aimed at preserving the state’s death penalty, holding a disputed re-vote Monday in committee and advancing the proposed law to the Senate floor for a full vote.
House Bill 658 would shield suppliers of lethal injection drugs and all execution participants from any public disclosure, including in a court of law. Proponents have framed the bill as vital to maintaining capital punishment in the state.
“This is an issue where if we’re going to address it, we need to address it now,” Sen. Todd Lakey, R-Nampa, the bill’s co-sponsor, told committee colleagues Monday. “This just keeps the identity of the person or entity confidential. So we’re not talking about confidentiality of the substances. We’re talking about the confidentiality of the identities of those involved.”
No more public testimony was accepted Monday after the bill failed to advance last week in a 4-4 tie vote. Spirited debate among the committee lasted about 15 minutes ahead of the re-vote, when the Senate panel passed the bill by a 5-4 tally.
“I don’t see this as a vote to end the death penalty,” Sen. Christy Zito, R-Hammett, said of reissuing her no vote. “If we have a lethal injection that goes south, and we can’t track where that chemical came from … I think that’s a disservice to the people of the state, for whom this act is being performed in their name.
“I’m not voting against the death penalty,” Zito continued. “I’m looking for transparency and accountability and clarity.”
If passed by the Senate and signed by Republican Gov. Brad Little, the law would prohibit release of all public records that could lead to identifying Idaho’s sources of lethal injection drugs. Attorneys representing death row inmates on appeal also would be precluded from the information in mounting their client’s defense.
In a 2020 ruling, the Idaho Supreme Court ordered the Idaho Department of Correction to turn over such identifying documents in response to a public records lawsuit. The documents revealed the state’s suppliers for its most recent executions conducted in 2011 and 2012, as well as the covert tactics state prison officials employed to keep them a secret — including use of confidential cash accounts. The two out-of-state pharmacies that supplied Idaho with the drugs each were later shown to have dubious safety histories.
The Senate panel’s vote to advance the bill came on the first day of National Sunshine Week, an annual initiative promoting access to public information and open government.
Longtime senator issues deciding vote
Sen. Patti Anne Lodge, R-Huston, who was absent from the nine-member committee when it voted on the bill last week, broke the prior tie by lending her support. Lodge offered no comment during debate, but seconded the motion to advance the bill.
After the hearing, Lodge told the Idaho Statesman in an interview that she listened to last week’s committee testimony before making her decision. While sentencing a person to death is not a desired result or to be taken lightly, she said, in some cases it is an appropriate punishment.
“I just think we need to protect those people who are involved in that process, because it’s hard on them, too,” Lodge said. “It’s something no one wants to do — no one wants to be involved with that.”
Lodge has a unique vantage into capital punishment. Her husband, Edward Lodge, is a retired U.S. district court of Idaho judge who, the 11-term state senator said, has sentenced inmates to death. He also was the judge who denied an appeal from Richard Leavitt, the Idaho death row inmate most recently executed by the state in 2012.
Last week’s committee hearing included a half-hour of public comments in opposition to the bill, from such organizations as the Americans Civil Liberties Union of Idaho, Idaho Press Club and the Idaho Association of Criminal Defense Attorneys. Ronald Bush, another retired U.S. district court of Idaho judge — and Edward Lodge’s peer — who presided over death row inmate Paul Rhoades’ unsuccessful appeal in 2011, also spoke out against the execution confidentiality bill.
“All we know for sure is if it’s in a completely secret setting, then the ability to know is uncertain,” Bush told the Senate panel. “And I worry that we’ll simply encourage surreptitious activity of the sort we know occurred with the Rhoades execution and the Leavitt case.”
No one spoke in favor of the bill during the public testimony portion of last week’s committee hearing.
Senate setback unexpected, sponsor says
The lethal injection shield bill passed the Idaho House last month, but won approval by just eight votes. The narrow margin resulted from a split among House Republicans, with the Idaho Freedom Foundation, a libertarian think tank, advocating against the bill.
Rep. Greg Chaney, R-Caldwell, the bill’s House sponsor, previously told the Statesman that he figured the House would be the more difficult chamber to pass the bill, making last week’s Senate committee setback unexpected. Of the 24 U.S. states that maintain active use of the death penalty, 19 already have a similar confidentiality law as the one Idaho is trying to pass, he said.
“I thought the House would be more skeptical of the legislation, and it would be the harder hill to climb,” Chaney said by phone. “The Freedom Foundation was a big part of that calculus in my mind. The GOP platform calls for support of the death penalty, but the Freedom Foundation has different ideas on criminal justice, in general.”
Even so, procedural questions arose Monday in the Senate panel over if a re-vote was permitted just six days after the bill failed to advance on a tie, without either being amended or reintroduced. Democrats and one Republican — each of whom voted against the bill last week — took issue with whether the additional vote was proper.
“I was wrestling with the fact of, where is the bill in committee, did it fail, could it be reconsidered?” said Sen. Melissa Wintrow, D-Boise. “It seems to me there is still some legitimate question. … Otherwise, my sense is we can continue to keep recalling things to the committee.”
As the committee chair, however, Lakey said he had the authority under recognized legislative policy to bring the bill up for another vote because a tie leaves its status unresolved. He also said he consulted with both Secretary of the Senate Jennifer Novak and the Idaho attorney general’s office on the matter, and, Lakey said, each assured him his interpretation of the policy was correct.
With the Idaho Department of Correction, the Idaho attorney general’s office co-authored the lethal injection shield bill that came back before the Senate committee. In addition, officials with the attorney general’s office, including Brian Kane, Idaho’s chief deputy attorney general, have testified more than once on behalf of the bill.
Kane sat in on the Monday hearing while flipping through the state’s legislative policy manual. After the committee’s vote to advance the bill — in support of his office’s push for the legislation — Kane declined to comment to the Statesman about whether Lakey’s interpretation of the legislative policy for tie votes was accurate.
Scott Graf, spokesperson for the attorney general’s office, later confirmed by email to the Statesman that Lakey consulted with the office about his reading of the legislative policy. However, Graf declined to say who in the attorney general’s office the senator contacted.
The execution confidentiality bill is scheduled to come up for a Senate vote this week, as soon as Thursday.
This story was originally published March 14, 2022 at 2:24 PM.
