Idaho bill to hide execution drug suppliers from public clears Legislature

From the Idaho Statesman

By Kevin Fixler,  Idaho Statesman

A bill designed to conceal the identity of all execution drug suppliers to maintain Idaho’s death penalty by lethal injection is only a governor’s signature away from becoming law.

House Bill 658, co-authored by the Idaho attorney general’s office and Idaho Department of Correction, cleared the state Senate on Friday to win full approval in the Legislature. After nearly an hour of debate, the Senate backed the proposed law in a 21-14 vote. The House passed the bill by a narrow margin last month.

Proponents have said the law is necessary to continue Idaho’s overarching policy of capital punishment.

“Lethal injection is the most humane way to perform this function,” said Sen. Todd Lakey, R-Nampa, who is the bill’s Senate sponsor. “Without this bill, the policy of the state of Idaho is simply null and void — it’s ineffective. … Without this, that policy does not exist.”

State prison officials have said that suppliers won’t sell them lethal injection drugs out of concerns that they will be identified and face public scorn for involving themselves in the polarizing national issue of capital punishment. Proponents of the bill have said allowing the names of drug sources and medical participants to be released will lead to protests of the homes and businesses of those who assist, to shame them out of helping Idaho carry out an execution.

Josh Tewalt, director of the Department of Correction, testified in favor of the bill before committees in the House and Senate that the agency does not presently have execution drugs on hand. He said the state’s ability to continue the death penalty is threatened by this barrier, and discouraged calls from some lawmakers to instead return of other methods of execution, including a firing squad and hangings.

The Department of Correction and Idaho attorney general’s office each declined an Idaho Statesman request for comment after passage of the bill. The Federal Defender Services of Idaho, the nonprofit that represents the majority of the state’s death row inmates, also declined to comment Friday.

The bill’s opponents include the American Civil Liberties Union of Idaho, Idaho Press Club and the Idaho Association of Criminal Defense Attorneys. Each testified against the bill in House and Senate panel reviews before it came up for full votes in the two chambers of the Idaho Legislature.

During debate of the bill Friday afternoon, three Republicans spoke in favor of its passage, and seven senators debated against it, including four Republicans.

Assistant Minority Leader Grant Burgoyne, D-Boise, spoke for more than 15 minutes, emphasizing the bill’s particular importance to him, an attorney. He said he is not in opposition of the death penalty, but the lack of public transparency and civil rights questions under the U.S. Constitution that the proposed law creates were reasons to block its passage.

“When you tell the public they can’t know, they speculate and they distrust,” Burgoyne said. “If there is to be public support for execution, the public has to have confidence in the process. Denying transparency is not going to help. It’s only going to make it worse.”

Burgoyne was joined by Sen. Christy Zito, R-Hammett, in attempting to convince fellow senators to vote against the bill. Zito raised concerns about not even allowing courts to know the source of the lethal injection drugs under the proposed law in the case that an execution is botched, causing an “inhumane death.”

“Each and every one of us in this body today will be responsible for the result of the next execution that is carried out in this state,” Zito said. “It will be as if our hand is on that syringe. … I want to be able to say that I chose transparency and accountability.”

The Senate’s vote to approve the bill came during National Sunshine Week, an annual initiative promoting access to public information and open government.

Past execution practices under scrutiny

The lethal injection confidentiality bill came about as a result of an Idaho Supreme Court ruling in 2020 that compelled the Idaho Department of Correction to release documents identifying past execution drug sources in response to a public records lawsuit. The documents were later used to show the two out-of-state pharmacies that provided the state with the lethal injection drugs for executions in 2011 and 2012 had dubious safety histories.

The documents released under court order also revealed the lengths to which state prison leadership went to keep its execution drug sources secret. Such covert tactics included the use of confidential cash accounts and state-chartered flights, as well as leveraging the Idaho Department of Health and Welfare to acquire the drugs on IDOC’s behalf.

The Federal Defender Services of Idaho alleged in a subsequent legal filing that Tewalt was personally involved while at the time in a junior leadership position. The lawsuit alleged he brought a suitcase with as much as $15,000 cash aboard a state flight to Tacoma, Washington, in 2012 to make an after-hours exchange for the drugs in a Walmart parking lot.

Ronald Bush, a retired U.S. district court of Idaho judge who presided over death row inmate Paul Rhoades’ unsuccessful appeal in 2011, testified against the bill during a Senate panel review before it advanced to the Senate floor for a vote. He said Tewalt told him before the hearing that the details of the 2012 drug purchase were inaccurate.

“That’s the sort of stuff I used to see affidavits in support of arrest warrants, so I hope that wasn’t the case,” Bush said. “But the point is, the reason for the secrecy is to let that sort of thing happen, and is that really good policy, on one of the most serious actions that the state can take against an individual?”

Idaho Division of Aeronautics flight records obtained by the Statesman under the Idaho Public Records Act confirmed Tewalt and another former member of state prison leadership were on a May 2012 round-trip flight to Tacoma. The drugs acquired in that transaction were later used to execute death row inmate Richard Leavitt on June 12, 2012, IDOC records show. Leavitt was the last prisoner executed in Idaho.

Tewalt also denied assertions about how IDOC previously acquired execution drugs during bill testimony last month, stating that they were merely allegations made as part of a lawsuit. He has declined repeat interview requests from the Statesman about the department’s past lethal injection drug practices.

“While that story has been widely reported, it always includes the caveat that it’s an allegation as part of a litigation,” Tewalt said during testimony in the House panel last month. “I think the important thing to note is that while we’ve chosen to do our talking where it really matters — and that’s in the appropriate legal venue — I would suggest that those chemicals were lawfully obtained, they were tested and verified through an independent third-party, and they were administered in accordance to the law.”

Several senators again brought up the state’s past execution drug practices, documented in Department of Correction records released under court order, during debate Friday. Lakey, the bill’s Senate sponsor, responded and backed Tewalt’s claims in seeking the votes to send the bill to Republican Gov. Brad Little’s desk.

“There’s been no improper conduct in the provision of the death penalty in Idaho,” Lakey said. “Those stories are myth and false.”

Rep. Greg Chaney, R-Caldwell, who is the bill’s House sponsor, told the Statesman in a prior interview that Tewalt also told him that publicized details about past execution drug purchases were untrue.

“I don’t know whether that happened,” Chaney said by phone of the after-hours cash exchange in Tacoma’s Walmart parking lot. “That sort of thing shouldn’t have to happen to procure lethal injection drugs. To the degree that that’s either factually or metaphorically the case, that highlights the problem that (House Bill) 658 is trying to fix. So the very fact that allegation can be leveled shows there’s a problem with the availability of lethal injection drugs.”

After House Bill 658’s Senate passage Friday, the ACLU of Idaho called on Gov. Little to veto the bill.

“We are disappointed with today’s Senate vote,” Lauren Bramwell, the ACLU of Idaho’s policy strategist, said in a written statement to the Statesman. “It is inconsistent for lawmakers to tout the importance of government transparency, while simultaneously cloaking the state’s greatest power — the power to end someone’s life — in a veil of secrecy. Without transparency, cases of incompetence or misconduct can continue unchecked.”

Next steps for state executions

The execution confidentiality bill next heads to Gov. Little’s desk, where he can either veto it, or sign it into law. A Statesman email to Little’s office inquiring how he plans to handle the bill did not receive a response Friday.

On Thursday, Lt. Gov. Janice McGeachin, who is challenging Little in the upcoming GOP gubernatorial primary, told the Statesman in a brief in-person interview that she had yet to look at the lethal injection shield bill, despite her role as president of the Senate. As a result, she offered no position on the bill.

In a related matter, the Idaho Supreme Court upheld the state’s lethal injection protocols on an appeal from attorneys with the Federal Defender Services representing death row inmate Gerald Pizzuto. The convicted double-murderer is terminally ill with late-stage bladder cancer and has been on hospice care for more than two years.

Pizzuto, 66, has sat on Idaho death row for more than 35 years after his 1986 conviction for the brutal murders of two people at a remote Idaho County cabin north of McCall in the summer of 1985. Pizzuto has avoided execution three times since, most recently including last spring, when he was granted a clemency hearing to consider reducing his sentence.

The Idaho Commission of Pardons and Parole, a seven-member board appointed by the governor, voted 4-3 to drop Pizzuto’s sentence to life in prison without parole, issuing its decision in December. On the same day, Little rejected that recommendation, leading Pizzuto’s attorneys to challenge in court the governor’s authority to do so under the Idaho Constitution.

A state district court judge heard the case in January, ruling two weeks later that the state’s constitution does not give the governor the power to reject the parole board’s recommendations, including for death row inmates. Pizzuto’s sentence was returned to the parole board’s recommended life in prison, disallowing the issuance of a death warrant.

The Idaho attorney general’s office, in collaboration with the governor’s office, is currently appealing that ruling to the Idaho Supreme Court. The case is expected to be heard later this year.

From the Idaho Statesman

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