From the Idaho Statesman
By Kevin Fixler
Idaho won’t be able to carry out the death penalty until the state prison system improves media witnesses’ access to a concealed room where prison officials prepare for and perform lethal injections, a federal judge ruled Tuesday.
U.S. Magistrate Judge Debora Grasham for the District of Idaho issued a preliminary injunction that orders the Idaho Department of Correction to upgrade the wing of the maximum security prison where executions take place so members of the media can see and hear what happens before, during and after a prisoner is put to death. The state cannot pursue an execution until IDOC makes the improvements, she wrote.
“It is clear that the performance of capital punishment in the United States has historically been open to the public,” Grasham said in her 34-page decision. “The court finds that the means and methods of an execution were also open and obvious, allowing the public to witness not only the execution itself, but the cause and effect of the execution method used.”
Grasham’s ruling came in response to three news outlets, including the Idaho Statesman, suing IDOC over the right to hear and see what goes on in the so-called “medical team room,” where the execution team prepares and administers drugs for a lethal injection. The two other news outlets were The Associated Press and East Idaho News in Idaho Falls.
Earlier in the case, Grasham denied IDOC’s efforts to dismiss the lawsuit outright.
She rejected an argument that the matter in question, of restricting journalists from seeing and hearing the medical team room during an execution, did not reflect a free press issue in violation of the First Amendment. Grasham also brushed aside arguments from the state that the lawsuit was “speculative and hypothetical” because no death row prisoner is currently scheduled to be executed, and that the news outlets could not prove potential harm over IDOC’s policy.
The Idaho Attorney General’s Office represented IDOC in the legal matter. Neither IDOC nor the Attorney General’s Office responded to requests for comment from the Statesman. The Attorney General’s Office has contracted with private attorney Tanner Smith of Boise-based law firm Moore Elia Kraft & Stacey for the case, and Smith did not respond to an email seeking comment either.
Smith contended in oral arguments earlier this month that granting the media’s request to hear and see what happens in the execution chamber preparation room, which would require IDOC to add a camera and microphone to an existing closed-circuit broadcast system, would place an “undue burden” on the state. Doing so also would constitute a judge ordering unprecedented access to a state’s execution process, Smith argued.
“It goes beyond what any court has ever done,” Smith told Grasham at the hearing.
Attorney Wendy Olson, a former U.S. attorney for Idaho and now a partner with Stoel Rives law firm, represented the three news outlets in the case. Olson in an earlier interview acknowledged that asking the judge to pause all executions in the state while the prison system addresses its access issues was a hefty request.
“It is a big ask of a court to say, ‘State, you can’t do anything until you fix this access issue,’ ” Olson told the Statesman after this month’s hearing. “We obviously think that’s also what the First Amendment demands, and Judge Grasham will have to weigh those carefully when she decides what to put in her order.”
Olson repeatedly argued that media witnesses at an execution, representing the interests of the public, are entitled to see all activities “inextricably intertwined” to the state carrying out the death penalty. That includes when the execution team prepares and administers lethal injection drugs by depressing syringes into intravenous lines attached to the prisoner.
In court, Smith rebutted the assertion. He framed the action of pressing syringe plungers — which is out of sight of witnesses — to deliver execution drugs to the condemned prisoner as a “minute detail.”
“It’s a minute detail that the deadly drug is administered?” Grasham fired back. “I don’t see that as a minute detail. It’s inextricably intertwined.”
Smith later conceded that an execution by lethal injection cannot happen without prison officials pushing the drugs into the IV line connected to the condemned. But to grant journalists more visual and audio access to the process, he argued, still went beyond the scope of what media witnesses had a right to hear and see.
“Ultimately, the court finds that a historical tradition of audio and visual access to the means and methods used in enacting capital punishment is well-documented,” Grasham wrote in her order Tuesday. “At this preliminary stage, the preparation and administration of the lethal injection drugs that occurs within the medical team room, is an aspect of the execution that plaintiffs have demonstrated a right to witness under the First Amendment.”
Death Penalty Action, a group that advocates for abolishing capital punishment in the U.S., praised Tuesday’s ruling.
“The days of public hangings are long gone, but executions are perhaps the most invasive government program in existence,” Abraham Bonowitz, the group’s co-founder and executive director, told the Statesman. “The media is the eyes and ears of the public, and as such they should witness every moment of the process.”
Idaho failed to execute prisoner Thomas Creech last year
Idaho last executed a prisoner more than a dozen years ago, when it lethally injected convicted murderer Richard Leavitt in June 2012. The state tried to execute its longest-serving death row prisoner, Thomas Creech, convicted of three murders in Idaho, in February 2024, but called off his planned lethal injection when prison officials could not find a suitable vein for an IV for almost an hour.
Creech, 74, has remained in limbo ever since. His attorneys with the legal nonprofit Federal Defender Services of Idaho have argued in federal court that a second attempt to execute their client would represent cruel and unusual punishment in violation of his Eighth Amendment rights. The judge issued a stay of execution for Creech, which remains in effect pending a ruling after a December hearing.
The Federal Defenders declined to comment on Grasham’s order, which effectively blocks the possibility of Creech’s execution, at least until the prison system improves media access. Another of the nonprofit’s clients, death row prisoner Gerald Pizzuto, 69, who is terminally ill with bladder cancer, also is under an active execution stay.
Following the state’s failure to execute Creech, the Republican-controlled Idaho Legislature passed a bill this year, which Republican Gov. Brad Little signed into law, to make a firing squad the state’s primary method to carry out the death penalty starting in July 2026. New IDOC Director Bree Derrick told a legislative committee in March that remodeling the execution chamber for the controversial method will take about nine months of construction.
Little’s office did not respond to a request for comment.
The American Civil Liberties Union of Idaho applauded Grasham’s decision.
“Secrecy in executions is unacceptable and should never be tolerated. The public deserves full access to the process to ensure accountability,” Leo Morales, the ACLU of Idaho’s executive director, said in an email to the Statesman. “We believe the death penalty should be abolished entirely, but as long as it persists, the state must administer it with full transparency.”
None of the state’s 15 Democratic lawmakers voted in support of switching from lethal injection to a firing squad for Idaho executions. Idaho Democrats, however, have not entirely opposed capital punishment.
“There are some crimes that are so heinous I don’t have a moral problem with applying the death penalty in those cases,” House Minority Leader Ilana Rubel, D-Boise, told the Statesman late last year. “Certainly the murders in Moscow come to mind on that front. … I feel like the firing squad is kind of a bridge too far.”
Bryan Kohberger, the defendant in the University of Idaho student homicidescase, is charged with four counts of first-degree murder, and prosecutors intend to seek the death penalty if he is convicted. His capital murder trial in Boise is scheduled to start with jury selection in late July.
The execution chamber renovation to accommodate a firing squad is expected to come with almost a $1 million price tag, IDOC previously told the Statesman. A design and building firm is rescoping the project in light of the new law to update the estimated cost and timeline, in preparation of construction, Derrick said.
“We are confident that we will be able to make that happen in advance of the July 1 effective date next year,” she told the legislative committee.
This year, South Carolina became the first U.S. state to execute a prisoner by firing squad in nearly 15 years, having now done so twice since March. Utah, Missouri and Oklahoma are the three other states that allow shooting a prisoner to death, but only Idaho has made the method its preferred way to carry out the death penalty.
When Idaho’s new law takes effect next year, lethal injection will remain the state’s backup execution method.
This story was originally published April 29, 2025 at 2:38 PM.
From the Idaho Statesman