Editorial from the Idaho Statesman

The city of Boise’s newly revamped Office of Police Accountability is not living up to its name.

Without announcement or public notification, the office has been quietly posting incident reports over the past three months, including a report into the shooting of Mohamud Hassan Mkoma.

Further, the reports themselves leave much to be desired.

The Idaho Statesman was able to identify the report by matching details from it to the unique circumstances involving Mkoma’s case.

Even more troubling is that Jesus Jara, the office’s director, answered questions about transparency by saying the vagueness and quiet release of the reports are by design and align with how the ordinance creating the office was written.

Jara acknowledged that the lack of identifying information in a report could make it difficult for the public to know which incident a report is referencing.

“If that’s the case, in my mind, we met our goal,” Jara told Idaho Statesman reporter Joni Auden Land. “We’re trying to make sure people don’t know.”

Jara also said it’s not a goal of his office to disseminate the reports and that he has no plans to announce the release of any investigation completed by the Office of Police Accountability, whose stated goal is to increase transparency and accountability in internal investigations of law enforcement.

“We don’t plan on trying to make this something of a news item,” Jara said.

That is unacceptable.

Fortunately, the city of Boise announced Thursday, after reporting by the Idaho Statesman, that the office will start issuing news releases when it completes an investigation, a reversal from its earlier position.

That’s good news.

Communicating with the public is vital to transparency. It’s also vital to public trust.

If the public believes that the Office of Police Accountability is trying to keep its reports quiet, how can the public have any trust in the results? The review of the Mkoma shooting is dated Dec. 27, but no public statement was made about it or about any of the recent reports — three at the end of December, one at the end of January and two at the end of February.

The Statesman was made aware of the completion of these six reports during Jara’s presentation before the Boise City Council on Tuesday.

Family and friends of Mkoma have been pressing the city of Boise to release information about the incident as well as body camera footage. While the Ada County Prosecuting Attorney’s Office has withheld the body camera footage for reason, the Office of Police Accountability should have and easily could have announced the release of its investigation.

Instead, the report was filed in December and sat on the city’s website for three months — unannounced to the public.

The report certainly isn’t easy to find on the city’s website.

The Office of Police Accountability page is not found under “Police Department,” as one might expect.

It also is not found under “Community Engagement.” It’s found under “Mayor’s Office,” which may not be a logical place to look for that office.

Further, without notification to the public, that means an interested party, such as family and friends, would need to check the site every day to see if a report has been posted.

Previously, the part-time director of the then-named Office of Police Oversight did her own community outreach. Boise Mayor Lauren McLean assured this editorial board in June that the Office of Community Engagement would handle such functions under the new Office of Police Accountability.

We would have expected, then, that someone from that office would have issued a press release to inform the public that a report had been completed and posted.

That never happened.

As it is, it appears that the Office of Police Accountability is not even posting its reports when they are filed. Rather, the reports appear to be posted at the end of each month.

After the city of Boise violated public records laws twice in the past few months, this is yet another troubling example of a lack of transparency from a mayor who ran and got elected on a platform of government transparency.

Aside from the lack of transparency, we are also troubled by the reports themselves.

Without names of officers involved, we are unable to determine whether an officer has been involved in other shootings or even in other disciplinary action. We don’t know how much experience they have or how much training they have — especially whether they’ve gone through critical incident training.

Jara said the ordinance creating the accountability office requires that no names or identifying information of anyone involved be included. If that’s the case, Boise City Council members need to make changes to the ordinance.

When changes to the office were proposed last year, this editorial board supported them.

Rather than reviewing a Boise Police Department internal affairs report and gathering further information as needed, we were told, the new model would put an investigator, requested by the Office of Police Accountability, at the site of a critical incident to conduct first-hand interviews and collect information independently right from the start.

Based on the Mkoma report, we’re not convinced that happened.

The report indicates that the Office of Police Accountability “participated” in the internal affairs interviews with the sergeant and officers involved, but it does not state whether the office asked its own questions or merely witnessed their interviews. The report does not state whether the office was able to interview officers independently.

We haven’t seen body camera footage of the incident yet, but according to the report, the officers in the Mkoma shooting acted heroically, perhaps saving the life of a 13-year-old child, and certainly saving the life of Mkoma after shooting him five times.

Officers put pressure on his wounds and performed CPR on Mkoma, who survived.

But our concern is more about transparency and being open with the public.

In our initial support for the new office, we had an important caveat.

“While we support the proposed changes, we want to make sure that the city doesn’t lose outreach to the community, particularly to minority communities,” we wrote in June. “It will be vital to maintain positive relationships with all segments of the population.”

Unfortunately, on several points, the revamped Office of Police Accountability is falling short.

Boise City Council members need to step in here and ensure the Office of Police Accountability is accountable to the residents.

Statesman editorials are the unsigned opinion expressing the consensus of the Idaho Statesman’s editorial board. Board members are opinion editor Scott McIntosh, opinion writer Bryan Clark, editor Chadd Cripe, newsroom editors Dana Oland and Jim Keyser and community members J. J. Saldaña and Christy Perry.

Editorial from the Idaho Statesman

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

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — A Senate committee chairman has revived a bill that would dramatically increase the secrecy surrounding Idaho’s execution drugs, bringing the matter back for a second vote on Monday after it failed to pass last week.

With one more member of the Senate Judiciary and Rules Committee present, the bill passed on a 5-4 vote, going to the full Senate with a “do pass” recommendation.

Last Wednesday, the legislation had died on a 4-4 tie vote. The tie-breaking vote on Monday was cast by Sen. Patti Anne Lodge, a Republican from Huston, who was absent on Wednesday.

The legislation would prohibit Idaho officials from revealing where they obtain the drugs used in lethal injections, potentially even if they are ordered to do so by the courts.

During a hearing last week, the bill drew heavy opposition from criminal defense attorneys, a retired federal judge and various organizations. They argued that capital punishment requires more government transparency, not less.

On Monday, committee chairman Sen. Todd Lakey said he had reviewed “Mason’s Manual,” the procedural rulebook used by the Legislature, and decided that he could bring the bill back for a second vote when the full committee was present.

He said the rules show that a tie vote is a “nullity” that simply maintains the status quo. The need for a re-vote was urgent, the Republican from Nampa said, noting that the state would be fighting in court to execute two death row inmates in the near future.

“If this is an issue we’re going to address, we need to address it now,” Lakey said, so “that the death penalty can be an appropriate sentence in Idaho.”

But Sen. Melissa Wintrow, a Democrat from Boise, and Sen. Christy Zito, a Republican from Hammett, disagreed with Lakey’s interpretation of the rules. They expressed concern that about the precedent that would be set by allowing re-votes on settled matters. That could lead to repeated re-votes, slowing the Legislature’s work, they said.

“I’ve been kind of perplexed by this as well,” Zito said. “It would seem to me if we’re not careful we could set a precedence if we don’t like the way something turned out … I have had bills myself that have had a tie vote, and that’s just it.”

During testimony last week, Idaho Department of Correction Director Josh Tewalt said potential drug suppliers want the confidentiality provisions written into state law before they will sell the drugs to Idaho’s prison officials. He said that prison officials are currently unable to obtain the chemicals they need for executions.

Tewalt also said concerns that the department might use tainted or inappropriate drugs are unfounded, contending that prison officials would decide on their own not to use any chemicals if there is a question about their suitability.

But Ronald Bush, a retired U.S. District Court judge who has presided over cases where a condemned Idaho inmate was fighting the state’s execution policy, said the legislation puts the Eighth Amendment protections against cruel and unusual punishment and the First Amendment free speech rights of the general public at risk.

Bush said he was speaking as a private citizen, not as a representative of the courts. He said that the Idaho Department of Correction had acted “surreptitiously” in its two most recent executions.

In one case, department officials withheld information from the federal courts about the fact that they were sending a worker across state lines to purchase the lethal chemicals, using cash eight days before a scheduled execution.

The legislation narrowly passed the full House last month.

From the Associated Press

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — A bill that would have increased the secrecy surrounding Idaho’s execution drug suppliers died in a Senate committee hearing Wednesday on a tie vote.

The legislation would have barred Idaho officials from releasing where they obtain the drugs used in lethal injections, but it drew heavy opposition from criminal defense attorneys, a retired federal judge and various organizations who all argued that capital punishment requires more transparency, not less.

Members of the Senate Judiciary Committee voted 4-4 on whether to advance the bill, which means the legislation automatically fails.

During testimony, Deputy Attorney General Mark Kubinski told the committee that the legislation was needed because anti-death penalty advocates could try to identify and then publicly shame the companies or individuals that supply lethal injection drugs. He said such instances had happened around the country, making it increasingly difficult for departments of correction to obtain the materials needed for executions.

Idaho Department of Correction Director Josh Tewalt said potential drug suppliers want the confidentiality provisions written into state law before they will sell to Idaho’s prison officials.

“As I stand before you today, we have been unable to secure the chemicals necessary to carry out lethal injection in the state of Idaho,” Tewalt told the committee.

He said concerns that the department might use tainted or inappropriate drugs are unfounded, and any questions about whether lethal injection amounts to cruel and unusual punishment have already been resolved by the nation’s court system. If IDOC officials have any question about the suitability of a lethal injection medication, they will not use it, Tewalt said.

“I’ve never felt pressure … to carry out an execution regardless of what the potential consequences might be,” Tewalt said. “The understanding has always been, if we can’t do this with professionalism and dignity and respect, then we don’t do it.”

But Ronald Bush, a retired U.S. District Court judge who has presided over cases where a condemned Idaho inmate was fighting the state’s execution policy, said the legislation puts the Eighth Amendment rights of a condemned person and the First Amendment rights of the general public at risk.

Bush said he was speaking as a private citizen, not a representative of the courts. He said the Idaho Department of Correction has acted “surreptitiously” in two previous executions.

Bush presided over the case of Paul Ezra Rhoades, who was executed in 2011 for his role in the murders of two women in 1987. Days before the lethal injection was to occur, Rhoades asked Bush to temporarily halt the execution while Rhoades continued to fight the state’s execution procedures in court.

During a hearing on the request, the Idaho Department of Correction withheld information about how they were obtaining the executions drugs, “even though they were well aware that I was concerned about the hasty manner in which the state was going about this execution,” Bush said.

Bush denied Rhoades’ request, and he was put to death eight days later.

The judge found out years later — thanks to a public records lawsuit that exposed some details about the previous executions — that on the very same day of the hearing, a state employee was using cash to buy the drugs from a pharmacist in Salt Lake City.

“I don’t know if that information would have caused me to think differently than I did, but it certainly would have been something I would have looked at carefully,” Bush said.

The legislation would also have prohibited information about drug sources from being revealed even in court, Bush said, effectively turning it into a “black box.”

“That raised my eyebrows because I question whether that could be properly done,” he said.

In lethal injection executions, “it’s the details that matter,” Bush said, noting that there have been instances in other states where executions have been botched, resulting in “horrific and even barbaric circumstances.”

Anne Taylor, a criminal defense attorney who is qualified to represent people facing the death penalty, said she already has to tell her clients that under state law they won’t find out exactly which drug or drug combination will be used in executions until it is often too late to take legal action. Idaho allows the Department of Correction to withhold that information until shortly before an execution.

Lobbyist Teresa Molitor, representing the Idaho Association of Criminal Defense Lawyers, said “secrecy statutes” like the proposed bill make botched executions more likely “by shrouding all of the preparation in darkness.”

And Lauren Bramwell with the American Civil Liberties Union of Idaho said states have used secrecy laws as a pretext to hide improper conduct.

“If Idaho continues to execute its death row prisoners, the process must remain transparent and the government accountable,” she said.

After the hearing, Idaho Department of Correction spokesman Jeff Ray reiterated that the director, Tewalt, was not there as an advocate for the death penalty but simply to let lawmakers know what conditions are necessary for the state to carry out executions.

“We respect the process,” Ray wrote in an email. “It will be up to those policymakers to decide what’s next for the legislation.”

From the Associated Press

From the Associated Press

By Keith Ridler

BOISE, Idaho (AP) — Lawmakers in the House on Monday approved exempting some government cybersecurity records from public disclosure in a measure backers say is needed to thwart terrorist attacks.

The House voted 48-20 to approve the bill that would exempt disclosing the nature, location and function of cybersecurity devices, systems or programs used by a government entity to thwart terrorist attacks.

Republican Rep. Dustin Manwaring, the bill’s sponsor, said the legislation exempting those records from Idaho’s Public Records Act is needed because other nations are targeting government systems in the United States, and they could use public records to aid in those attacks.

“They are usually not just guys-down-in-the-basement hackers,” Manwaring said during debate on the House floor. “These are nation-state actors now that are attacking our government systems.”

Only Republican lawmakers opposed the bill, some citing their concerns individuals could fall under federal government surveillance if they are deemed to be domestic terrorists and not be able to find out about the surveillance.

Republican Rep. Heather Scott said that could include people the federal government considers spreading misinformation about the 2020 presidential election.

“Right now, we might think that we are not a target, but you get on the wrong side of the federal government, and you very well may be surveilled with no justification,” she said.

Democratic Rep. Chris Mathias, a U.S. Coast Guard veteran, said those fears were unfounded.

“I don’t care where terrorism comes from or originates,” he said. “I don’t care if it originates abroad or down the street from my house. If the government has the tools and the means available to do what is necessary to keep us safe, I want to make sure that we have them.”

Manwaring said a common item that would be prevented from being disclosed would be details about software designed to protect against malware attacks from terrorists.

Republican Rep. Vito Barbieri cited his concern that language in the bill about what constitutes a terrorist attack could be defined broadly to allow wide latitude in the government using cybersecurity methods without oversight.

“What is considered a terrorist attack?” he said. “This is a concern and I’ll be voting against it.”

Republican Rep. Julianne Young, who ultimately voted to pass the bill, sought clarification from Manwaring about limits on the bill, specifically asking if it could lead to government agencies withholding information about investigating a citizen.

Manwaring confirmed that the bill was only meant to withhold information about cybersecurity devices that protect other systems, and not to allow unfettered and hidden snooping on citizens.

The bill now goes to the Senate for its consideration.

From the Associated Press

From the Idaho Press

by Betsy Z. Russell

BOISE — Two election transparency bills cleared the Senate State Affairs Committee on unanimous votes on Friday, aimed at providing more timely access to campaign finance reporting in non-election years and ensuring candidates for office provide contact information.

SB 1337, from committee Chair Patti Anne Lodge, would close a gap in Idaho’s campaign finance reporting system that in non-election years, requires only reporting of contributions of more than $1,000, which must be reported within 48 hours. Full reporting, including all contributions or spending, currently isn’t required until the end of the year. Then, during the year of the election, there’s full monthly reporting.

“This is something that I’ve been working on for several years and that’s campaign finance transparency,” Lodge, R-Huston, told the committee. In 2021, a non-election year, $11.9 million was donated to 497 candidates and $7.2 million was spent on campaign activities, she said. But only the individual 48-hour reports were public before the Jan. 10 year-end report had to be filed; people had to sort through individual donation reports and add them up to get even a part of the full picture. “This is not what transparency of election contributions is about,” Lodge said. “Our citizens are calling for fair elections; that includes campaign financing of the campaigns.”

Under SB 1337, even in a non-election year, monthly reporting would start as soon as a candidate has raised or spent $500. That would apply to all campaigns, Lodge said.

She said with Idaho’s new electronic filing system, it’s easy to do.

“There have been a multitude of updates and improvements in our campaign filing system reports,” she said. “The system is friendly and easy to use now. This process in years past has been cumbersome and difficult. And I must commend our Secretary of State Lawerence Denney for his leadership in developing this reporting system.”

Elinor Chehey of the League of Women Voters of Idaho testified in favor of the bill, saying, “In 1974, the League of Women Voters of Idaho organized a successful campaign to get the Sunshine Law on the ballot. This was based on our goal to ensure transparency and the public’s right to know who is using money to influence elections. I carried a few petitions for the campaign.”

It passed with 77.4% of the vote, she noted. “SB 1337 helps to close a gap in the state’s new online campaign finance reporting system,” Chehey said, urging support for the bill.

Ada County Clerk Phil McGrane also spoke in favor of the bill. “I think Chairman Lodge has done an excellent job trying to push this forward,” he said. “Hundreds of thousands of dollars have been coming in during the non-election years. … We just didn’t anticipate campaigns beginning as early as they are beginning now.”

Lodge said, “Citizens deserve to understand who is financing campaigns in Idaho. This legislation was developed with the help of the secretary of state.”

Sen. Grant Burgoyne, D-Boise, said, “I just wanted to thank our chairman for bringing this legislation. Her persistence over the years for campaign transparency is much appreciated by me and I think many other people.” He moved to send the bill to the full Senate with a recommendation that it “do pass.” Sen. Lee Heider, R-Twin Falls, seconded the motion, and it passed unanimously.

Lodge called on Ken Burgess, lobbyist for the Idaho Press Club, to present the other transparency bill, SB 1338. It requires that campaign contact information, including a phone number and email address, be included in declarations of candidacy, and clarifies that that information is publicly available upon request. “There has been some interpretation of one of the sections in there related to the electronic filing system that perhaps that information is not available,” Burgess said, “and some entities have had challenges getting that information in the past couple of years.”

That has included the press, civic groups organizing candidate forums, and even county clerks.

McGrane testified in favor of SB 1338 as well. “We had a contested recount in Meridian in November,” he said. “And one of the candidates who was involved in that, I had to scour the internet, including going on LinkedIn and trying to connect with the person to get them a message, because I could not find contact information … to let them know that they would be involved in a recount.” He said the bill would be “extremely helpful.”

“I think you all recognize as candidates, once you put yourself out there, it seems reasonable,” McGrane said. “The candidates can determine what the best number is to reach them at, but that we be able to contact candidates I think is pretty important.”

Chehey also testified in favor of SB 1338 on behalf of the League of Women Voters of Idaho. She has chaired the league’s “Vote 411” project since 2018, which allows voters to look up which candidates are on the ballot in their area and see the candidates’ positions, in their own words. “We do not support or oppose candidates,” Chehey said. “Our purpose is to encourage active participation of citizens in government.”

Putting the project together requires emailing each candidate, she said, which was “fairly easy” in 2018, because the Secretary of State Office’s campaign finance website included phone numbers for candidates and their campaign treasurers. But, she said, in 2020, those numbers no longer were on the site, nor would the office release them.

“Since 2020, we have had to Google candidate names and hope to find a candidate’s website or Facebook page,” she said. “Some candidates have no website, or are up very late in the season, so they may get left out.”

Lodge told the committee, “Elinor contacted me this last summer about this legislation, and so she’s one of the bright lights that has brought it forward.”

Sen. Abby Lee, R-Fruitland, moved to send SB 1338 to the full Senate with a recommendation that it “do pass,” and Sen. Michelle Stennett, D-Ketchum, seconded the motion. It passed unanimously.

To become law, both bills still would need to pass the full Senate, clear a House committee, pass the full House and receive the governor’s signature.

From the Idaho Press

By Keith Ridler

BOISE, Idaho (AP) — The House on Thursday approved legislation that would bar Idaho officials from releasing where they obtain the drugs used in lethal injection executions.

The House voted 38-30 to send the measure to the Senate.

The Idaho Department of Correction has long tried to keep details about where and how it obtains lethal injection drugs secret, but the bill from Caldwell Republican Rep. Greg Chaney would make that secrecy part of state law.

Chaney said the legislation is needed because death penalty critics use the information to publicly shame companies that provide the drugs. He said some drug suppliers have refused to sell to Idaho without a promise of anonymity.

Chaney said courts have upheld Idaho’s death penalty, but “a new strategy has emerged in fighting the death penalty, and that is to name and shame the providers and the participants in that process.”

He said not keeping such information secret would essentially end the death penalty in Idaho. He said the proposed law allows disclosing the qualifications of those involved in carrying out executions, but not their identity.

He said the Idaho Constitution allows lethal injection, the current method, and a firing squad as appropriate means of execution.

“Firing squad, in theory, could be brought back, but our current protocols are the result of years and years of litigation on both state and federal questions, and we are in a place where our procedures are absolutely defensible,” he said.

The National Conference of State Legislatures said 27 states, the federal government and the U.S. military authorize capital punishment. The group on its website says that 22 states have expanded confidentiality laws to make secret some aspects of executions. That includes sources of drugs and identities of participants.

“Increasing difficulty in sourcing execution drugs has led states to enact or expand confidentiality laws specific to capital punishment,” the group says on its website.

Democratic Rep. Colin Nash argued against the bill.

“The government shouldn’t have the right to kill people using secret means, methods, practices and chemicals,” he said. “To do that in a constitutional manner, I just don’t trust them to do that.”

The suitability and origin of lethal injection drugs are frequently called into legal question when states are planning executions. Ineffective drugs can lead to botched executions, violating the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.

Idaho’s prison officials have long said they fear they won’t be able to obtain drugs for future executions if their suppliers believe they could be exposed. Major pharmaceutical companies have refused to sell medications to states if they think they will be used for executions, forcing some states to look for more novel sources, including compounding pharmacies and drugs from other countries such as India.

In 2020, the Idaho Supreme Court ordered the state Department of Correction to turn over information about where officials obtained lethal injection drugs used in recent executions in response to a public records lawsuit. In that case, the state had to release the identity of a drug supplier who was no longer in the business of supplying the drugs.

From the Associated Press

From the Idaho Statesman

BY KEVIN FIXLER

Idaho lacks the lethal injection drugs needed to execute a death row inmate, and state prison officials do not expect that to change if lawmakers won’t guarantee stiffer identity protections to potential suppliers.

The assertion by Josh Tewalt, director of the Idaho Department of Correction, was disclosed last week during public testimony over a bill designed to grant legal confidentiality to sources of execution drugs. Suppliers, Tewalt told lawmakers, have been reluctant to provide the drugs to the state if they are not ensured anonymity to avoid possible public backlash for their involvement in ending a human life.

“As I stand in front of you, I can attest that the state does not have the material ability to carry out an execution,” Tewalt said. “We have been unable to secure the necessary chemicals, and potential suppliers have expressed concern that the language in our administrative rule is insufficient to protect their identities.”

Tewalt’s statement conflicts with the state prison agency’s stance on the issue just nine months prior. In May, as Idaho sought a death warrant to execute convicted double-murderer Gerald Pizzuto, department spokesperson Jeff Ray told criminal justice news outlet The Marshall Project by email, “We are confident that when the time comes, we will have the chemicals necessary to carry out the court order.”

The Idaho Department of Correction has otherwise been unwilling for more than two years to say whether it possesses lethal injection drugs, citing ongoing litigation and its own internal guidelines against doing so. Before then, a previous director of the state agency affirmed in a sworn affidavit in September 2016 that IDOC had not had execution drugs on hand since June 2012, when Idaho last executed a death row inmate.

The bill, sponsored by two Republicans, would resolve this apparent insurmountable hurdle in the state’s pursuit of the ability to execute an inmate by way of lethal injection. Idaho maintains a one-drug lethal injection protocol that entails pentobarbital — a potent sedative that can stop a person’s breathing in higher doses, and is a Schedule II controlled substance in the U.S.

A House committee chaired by Rep. Greg Chaney, a Caldwell Republican and co-sponsor of the bill, approved House Bill 658 last week. It is scheduled for a full House vote Thursday.

Chaney and Brian Kane, chief deputy attorney general, each framed the bill during committee debate as an existential question over whether lawmakers wished to preserve the state’s current policy permitting capital punishment. IDOC and the attorney general’s office collaborated on drafting the bill, said Chaney and Scott Graf, spokesperson for the attorney general’s office.

“What’s not before us is a question on the ultimate appropriateness of capital punishment by lethal injection,” said Chaney, adding that he supports the death penalty. “However, functionally speaking, it is. Because, functionally speaking, they don’t have an avenue to move forward. The suppliers aren’t confident enough in the (current) rule to protect their identity.”

Idaho is one of 24 U.S. states that maintains active use of the death penalty. Of those, 19 of them extend some form of the drug supplier or execution participant shield, Chaney said. Idaho could become the 20th. The Idaho Way newsletter A weekly roundup of opinions, commentary and your views from around the region.

CRITICS ARGUE BILL ENDS PUBLIC EXECUTION OVERSIGHT

Chaney, an attorney who wore a scales of justice lapel pin for last week’s committee hearing, also said lethal injection is a more humane method of execution. He hinted that voting down the bill could result in the pursuit of reintroducing other alternatives, such as a firing squad, as South Carolina added in 2021.

“I don’t think you could expect fewer legal challenges to a firing squad,” Tewalt told the committee. “And, more importantly, I don’t feel as the director of the Idaho Department of Correction the compulsion to ask my staff to have to do that.”

In fact, Idaho prison officials explored reinstating the firing squad as recently as 2014, even drafting a bill in collaboration with the attorney general’s office, Graf confirmed. At the time, Ray, the IDOC spokesperson, told the Spokesman-Review that the bill didn’t move forward only because “it would take too much time and money” to implement.

Critics said Chaney’s bill instead allows the state to dodge accountability and appropriate scrutiny by hiding the source of execution drugs. Barring access to the business names of suppliers, including through litigation in a court of law, they argued, prevents legitimate oversight over the purity and effectiveness of the drugs.

Such public review is important in avoiding punishment of inmates that courts could deem cruel and unusual, as prohibited under the Eighth Amendment of the U.S. Constitution, said Lauren Bramwell, policy strategist with the American Civil Liberties Union of Idaho, which opposes the death penalty.

“The state carries out executions on behalf of Idahoans,” Bramwell told the committee. “The public has a right to know the source of lethal injections and the reputability and safety record of drug suppliers. Secrecy around lethal injection hinders open, meaningful and robust discourse about the death penalty.”

Attorneys with the ACLU of Idaho previously represented a University of Idaho law professor who sued the Idaho Department of Correction over its refusal to provide public records that could help identify the lethal injection drug suppliers in Idaho’s past two executions.

After a three-year legal battle, the Idaho Supreme Court sided with the professor and compelled IDOC to deliver the documents, which were later used to name two out-of-state pharmacies that supplied the lethal drugs. Both pharmacies had problematic regulatory histories. The court also ordered IDOC to pay more than $170,000 to cover the plaintiff’s attorneys fees.

During the course of the lawsuit, IDOC’s appointed board, at Tewalt’s recommendation, amended the department’s records disclosure rules to block release of such information going forward. For suppliers, though, Tewalt said last week, that’s proven not enough to sell lethal injection drugs to Idaho.

In response to a question from Rexburg Republican Rep. Ron Nate, about the state’s acquisition of execution drugs in 2012, Tewalt did not directly address his personal involvement in the process. Tewalt was one of two IDOC officials aboard a state-chartered flight back and forth to Tacoma, Washington, bringing with them as much as $15,000 cash to make the after-hours exchange with a pharmacist, according to documents and court depositions from the public records lawsuit.

“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,” Tewalt said. “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.”

Tewalt has declined repeat interview requests over several months from the Idaho Statesman, and previously said through the department spokesperson that he refuses to discuss execution drugs. A renewed request for an interview received no response Wednesday.

‘WE HAVE TO HAVE A CERTAIN FAITH’ IN GOVERNMENT

A representative of the Idaho Press Club also testified against the bill, citing a degradation of transparency and the Idaho Public Records Act with its approval. If it becomes law, it may lead to an erosion of public trust and confidence in the government, Press Club lobbyist Ken Burgess said. (Many Statesman journalists are members of the Idaho Press Club.)

Republican Reps. Gary Marshall, of Idaho Falls, and Julianne Young, of Blackfoot, rejected the idea in lending their support for the bill. Public records redactions aren’t uncommon to protect people under certain circumstances, and America was founded on an understanding that some actions are classified and held from public consumption, they said.

“We have never accepted the idea that the public has the right to know every detail of what our government does,” Marshall said. “We have to have a certain faith” in elected and appointed decision-makers to use good judgment and carry out the law.

Rep. Colin Nash, a Boise Democrat, disagreed, questioning why Idaho needed to operate covertly to fulfill an inmate’s death sentence if the state’s actions were above board.

“I trust the government to take out my trash,” Nash said. “I don’t trust them to kill people in secret processes. I think this is embarrassing.”

He was joined by Blackfoot Rep. David Cannon — an attorney and the only Republican on the committee to vote against the bill — who labeled the bill’s end result a “wall of secrecy” that left him with constitutional concerns, as raised by the ACLU. Bramwell stated better alternatives would be for Idaho to abolish capital punishment altogether or, absent that, instead consider the firing squad to avoid the execution process being taken further underground.

Chaney tried to allay fears about the bill by noting the lethal injection drugs acquired by the state will continue to be tested to verify their quality, which should eliminate any worries about where they are sourced. The credentials of execution participants will also remain available, he said, so long as they cannot be used to identify individual medical or prison personnel.

“What matters is the finished product,” Chaney said. “In fact, I would argue that the identity of the provider would be wholly irrelevant, except for the strategy of shaming them away from participating.”

Other committee members voiced their own unease over the bill before supporting it for a full vote on the House floor.

“I don’t like this bill, and I don’t like it because I think it’s sad that we’ve gotten to the point where we have to have this bill,” said Rep. Paul Amador, a Coeur d’Alene Republican. “But I don’t see an alternative to this option at this point.”

From the Idaho Statesman

From Eye on Boise/The Idaho Press

by Betsy Russell

The House Judiciary Committee, at the end of a meeting that lasted until nearly 6 p.m., has approved two public records exemption bills, sending them to the full House with recommendations that they “do pass.”

There was much testimony in favor of HB 620, after Rep. Brooke Green, D-Boise, spoke tearfully about her best friend’s death by suicide after she was arrested amid a mental breakdown and her booking mug shot was widely shown. HB 620 would prevent the public release of a booking photo of someone arrested on a misdemeanor not involving assault or battery, who is detained for mental health treatment within 24 hours after the arrest.

Rep. Marco Erickson, R-Idaho Falls, who is co-sponsoring the bill with Green, said, “It’s about mental health in a big way.”

The Idaho Sheriff’s Association opposed the bill, citing procedural issues with how it would work. But the committee passed it. “This bill is narrowly crafted,” said Rep. Gary Marshall, R-Idaho Falls. “It makes perfect sense.”

The second bill, HB 621, was proposed by the Association of Idaho Cities to exempt cybersecurity records. “HB 621 is a public records exemption, but it’s a very specific one and it’s a limited one,” said Rep. Dustin Manwaring, R-Pocatello, the bill’s House sponsor. “It does not exempt public expenditure records.”

The committee also approved that bill on a voice vote.

From Eye on Boise/The Idaho Press

From the Idaho Capital Sun

BY: CLARK CORBIN

Idaho Department of Correction director says the state does not have the ability to secure the drugs to execute Idahoans on death row.

A bill that would provide confidentiality to the manufactures of lethal injection drugs used in executions in the state is headed to the Idaho House of Representatives. 

On Thursday afternoon, the House Judiciary, Rules and Administration Committee voted to send House Bill 658 to the floor of the Idaho House with a recommendation it passes after two different organizaitons warned the bill would add even more secrecy to carrying out the death penalty.

If passed into law, the bill would provide confidentiality to and prevent the disclosure of any person or company who “compounds, synthesizes, tests, sells, supplies, manufactures, stores, transports, procures, dispenses, or prescribes the chemicals or substances for use in an execution or that provides the medical supplies or medical equipment for the execution process.”

The bill would also block that information from being introduced as evidence or discoverable during court cases. The bill would also shield the identity of the on-site physician, and the medical and escort teams that are present during executions. 

Rep. Greg Chaney, R-Caldwell, sponsored the bill, saying the makers of lethal injection chemicals won’t supply them to the state of Idaho anymore without the protection of confidentiality.

In the age of social media, Chaney said activists are finding the companies that provide lethal injection chemicals and “naming them and shaming them.”

“The problem is that currently our ability to carry out the sentence that has been imposed is impaired,” Chaney said. “It is impaired by an inability to procure the lethal injection drugs without protections provided to the identity of those who provide them.”

“The death penalty cannot move forward absent this legislation,” Chaney added.

Idaho Department of Correction Director Josh Tewalt agreed. 

“As I stand in front of you, I can attest that the state does not have the material ability to carry out an execution,” Tewalt said during Thursday’s hearing. “We have been unable to secure the necessary chemicals and potential suppliers have expressed concern that the language in our administrative rule is insufficient to protect their identities.”

But the American Civil Liberties Union of Idaho and The Idaho Press Club opposed the bill, arguing the public has a right to know the information about executions carried out by the state and funded by taxpayers.  

“Lethal injection is the only method of execution allowed under Idaho law, and the public has the right to know the source of lethal injections and the reputability and safety record of the drug’s suppliers,” said Lauren Bramwell, a policy strategist with ACLU of Idaho. 

Idaho’s past use of lethal injection drugs comes under scrutiny

Idaho’s use of lethal injection drugs has come under scrutiny recently. Last June, Idaho death row inmate Gerald Pizzuto wrote to his prison warden and asked to be executed by firing squad instead of using the drug pentobarbital, the Idaho Statesman reported. Pizzuto argued pentobarbital would be too hard on him given his medical history and violate the prohibition on cruel and unusual punishment. 

Public records and court depositions from a lawsuit filed by University of Idaho law professor Aliza Cover indicate that in May 2012 Tewalt, who was then a deputy chief with the Bureau of Prisons, took a state chartered flight to Tacoma, Washington, with up to $15,000 in cash, the Idaho Statesman and Idaho Press have reported. Tewalt and Department of Correction then-director Kevin Kempf kept the money in a suitcase and exchanged it for lethal injection chemicals from a Tacoma pharmacist during a meeting at a Walmart parking lot, records and dispositions from the Cover lawsuit indicate. 

Reps. Ron Nate, R-Rexburg, and Colin Nash, D-Boise, cited reporting over that 2012 trip during Thursday’s hearing. 

“I trust the government to take out my trash, I don’t trust them to kill people in secret processes,” said Nash, who voted against the bill. ”I am very uncomfortable with this idea. When I read the article that Rep. Nate was talking about — I have probably never been more embarrassed to be an Idahoan than when I found out how the government handled the last execution. I think this is embarrassing, and I don’t think our government should be in the business of carrying out executions in secret processes.”

Tewalt responded to Nate’s question about the 2012 trip during Thursday’s hearing. Tewalt said the report includes a caveat that allegations came out of a lawsuit. Tewalt also said the chemicals were lawfully obtained, verified, tested and administered in accordance with law. He also stressed that carrying out the death penalty is a solemn process, which the Department of Correction treats with care and dignity. 

During the hearing, Chaney told legislators 27 states use the death penalty and 19 of those states have similar shield laws on the books. 

If the Idaho House passes the bill, it would be sent to the Idaho Senate for consideration. 

Disclosure: Reporter Clark Corbin and other Idaho Capital Sun reporters are members of the Idaho Press Club.

From the Idaho Capital Sun