By Kevin Fixler
The Idaho Statesman
BOISE, Ida. — A pair of Idaho lawmakers are seeking to strengthen the state’s ability to keep the identity of lethal injection drug suppliers, medical personnel and prison officials who help carry out an execution confidential from any form of public disclosure.
The bill, sponsored by Rep. Greg Chaney, R-Caldwell, and Sen. Todd Lakey, R-Nampa, would further protect those who assist Idaho with executing a prison inmate, or participate in the lethal injection process, from being publicly named. The proposed law also would shield individuals, including pharmacists, doctors, anesthesiologists and emergency medical technicians — each prohibited by their respective professional associations from being involved in executions — from any discipline with their state licenses.
Chaney on Monday told a panel of lawmakers that it’s becoming more difficult to find providers willing to offer the state the drugs necessary to carry out an execution. A House committee on Monday unanimously approved introducing the bill.
“Opponents of the death penalty have engaged a new strategy in making the death penalty go away,” Chaney told the committee Monday, “and that is to leverage woke cancel culture to shame providers of lethal injection drugs away from providing those drugs for executions for states.”
Groups including the American Civil Liberties Union, which opposes the use of capital punishment, have raised questions about keeping the source of lethal injection drugs confidential, based largely on health and safety concerns for the inmate. The drug suppliers, who are compensated for their services with taxpayer money, should not receive comprehensive protections, the ACLU and other anti-death penalty organizations argue.
“This is a shameful and anti-democratic bill,” Ritchie Eppink, legal director of the ACLU of Idaho, told the Idaho Statesman in a written statement. “Idaho taxpayers deserve a right to know where their money is going and to make up their own minds about the state’s lethal injection practices. This bill is but more evidence that if the public knew what corrections officials were up to, they would be appalled.”
The Idaho Department of Correction, which houses death row inmates at the Idaho Maximum Security Institution near Kuna, deferred comment Monday to the Idaho attorney general’s office. The Statesman contacted the attorney general’s office Monday afternoon.
The nonprofit Federal Defender Services of Idaho, which represents the majority of the state’s eight death row inmates, declined Monday to comment on the bill.
Idaho has history of covert practices in executions
Issues surrounding lethal injection drug costs and sources came to the forefront in Idaho in 2018, when a University of Idaho law professor filed a public records lawsuit against the Department of Correction. The state prisons agency had declined to release documents that could lead to identifying its drug suppliers in Idaho’s last two executions, in 2011 and 2012.
Aliza Cover, the University of Idaho law professor, sued IDOC and was represented by the ACLU of Idaho. After a three-year legal battle, the Idaho Supreme Court ruled in their favor, compelling IDOC to release all relevant documents, and awarding more than $170,000 in attorneys fees to Cover.
“The lawsuit resulted in an important decision from the Idaho Supreme Court reaffirming the strength of Idaho’s Public Records Act, which has an impact well beyond the death penalty context,” Cover previously told the Statesman by email. “I’m hopeful that the lawsuit has played a role in promoting government transparency and accountability in Idaho across the board.”
The records released in the lawsuit later led to the identification of two compounding pharmacies that provided the drugs in Idaho’s past two executions — one located in Salt Lake City, and another in Tacoma, Washington. Together, the state paid more than $20,000 in cash for the execution drugs, the documents and lawsuit testimony revealed.
In response to the lawsuit, IDOC moved to tighten its records exemption rules for information related to executions — specifically information that could identify its drug sources. The agency’s appointed policy-making board adopted the amended public disclosure rules in May 2019. Those changes were later approved with limited opposition by the House and Senate committees, chaired by Chaney and Lakey, in January 2020.
During the 7-minute committee hearing Monday, Rep. Chris Mathias, D-Boise, asked Chaney for an example of a group working to publicly reveal a lethal injection drug source that the proposed law would protect. Mathias is one of just two Democrats on the 14-member House State Affairs Committee. Chaney, an attorney specializing in personal injury and civil litigation, said he could not provide a specific example.
Chaney, a four-term representative, is running for the open state Senate seat in Caldwell.
“They are anti-death penalty organizations who work to identify and then bring public attention, either through social media or protest, to bear on the pharmaceutical companies,” Chaney said. “They’ve been successful enough around the country that the word that they’re giving to our Department of Correction is, ‘Don’t even call us if you cannot provide us with anonymity.’ ”
If Idaho is no longer able to obtain lethal injection drugs to fulfill death sentences, Chaney added, the state may need to resort to adding backup methods of execution, such as a firing squad, hangings or the electric chair.
Repealing the death penalty would be another option, Chaney said, but not one he backs, nor one he thinks would be supported by Idaho’s conservative Legislature, which would have to pass a law ending capital punishment in the state.
Pizzuto granted reduced sentence
As recently as this past May, the state attempted to execute another inmate — Gerald Pizzuto, 66, who has sat on Idaho death row since 1986. He was granted a stay of execution when the Idaho Commission of Pardons and Parole agreed to hold a clemency hearing for the convicted double-murderer.
It remains unclear if the Idaho Department of Correction possesses the lethal injection drugs to execute an inmate. Prison officials have continually declined to address the issue, citing the department’s public disclosure exemption rules around lethal injection drugs.
A state district court judge recently granted Pizzuto, who is terminally ill with late-stage bladder cancer and confined to a wheelchair, a reduced sentence of life in prison without the chance of parole. The decision followed the parole board’s 4-3 vote in December to commute Pizzuto’s death sentence to life in prison, which Gov. Brad Little rejected the same day.
Pizzuto’s attorneys with the Federal Defender Services of Idaho, however, challenged in court the governor’s authority to reject a clemency recommendation, based on the language of the Idaho Constitution. Judge Jay Gaskill of Idaho’s Second District Court ruled in their favor, barring the state from seeking another death warrant for Pizzuto.
The attorney general’s office has appealed the state district court judge’s decision to the Idaho Supreme Court. A date has yet to be set for that hearing.
(c)2022 The Idaho Statesman (Boise, Idaho)