By Ruth Brown, Idaho Reports
A decision by the Idaho Commission of Pardons and Parole on Tuesday led to the stay of an Idaho man’s execution, and at least bought him some time.
The Commission granted Gerald Pizzuto Jr. a commutation hearing, which they will take up in November. His June 2 execution was canceled pending that hearing.
Pizzuto has been on death row for 35 years after being convicted of two counts of first-degree murder in Idaho County for the 1985 deaths of Del and Berta Herndon.
His two co-defendants, William Odom and James Rice, were given lesser sentences for their roles in the crime.
An ongoing discussion in Pizzuto’s case — and nationally — is whether people who are intellectually disabled should or can legally be punished with death for a crime they’ve committed.
On May 14, Pizzuto’s attorneys at the Federal Defenders Office asked for a stay of execution. In the transcripts, Deborah Czuba, supervising attorney of the Capital Habeas Unit, addressed her client’s intellectual functioning prong and said he is seeking an opinion from the U.S. Supreme Court.
According to a transcript of the hearing, Czuba argues “ The public as whole has an interest in making sure that an individual who is intellectually disabled is not executed by the State of Idaho.”
Idaho Code 19-2515A(3) states that a person with intellectual disabilities shall not be executed.
“If the court finds by a preponderance of the evidence that the defendant is (intellectually disabled), the death penalty shall not be imposed,” the law states.
The state defines intellectually disabled as “significantly subaverage general intellectual functioning… The onset of significant subaverage general intelligence functioning and significant limitations in adaptive functioning must occur before age 18 years.”
Under the law, “significantly subaverage general intellectual functioning” means an IQ of 70 or below.
Atkins vs Virginia
The landmark case involved Daryl Renard Atkins, who was convicted and sentenced to death after a 1996 murder.
Atkins and co-defendant William Jones, abducted Eric Nesbitt, robbed him, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed, according to a copy of the Supreme Court opinion.
Atkins’ attorneys said their client had a believed IQ score of 59.
The Supreme Court found that defendants with intellectual disabilities “may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.”
The court also found that death was not a suitable punishment for a person with intellectual disabilities, and that the Constitution places “substantive restriction on the State’s power” to implement the death penalty in such cases.
Ernest McCarver’s case
In 2001, the American Psychological Association submitted a brief to the U.S. Supreme Court in the case of Ernest McCarver.
McCarver was convicted of murder in North Carolina in 1987 and sentenced to death. McCarver’s IQ test scores ranged between 67 and 80, according to court documents.
The argument from the association defined intellectual disabilities by “significant impairments in intellectual functioning – impairments that also significantly limit the individual’s ability to cope with everyday tasks required to care for one’s self and interact in society.”
The brief claimed “Although many individuals (with intellectual disabilities) can achieve comparative independence when they receive appropriate training, support, and services, the fact remains that such persons are substantially less capable of both abstract reasoning and practical or adaptive functioning” than adults without intellectual disabilities.
In McCarver’s case, the brief stated none of the examiners assessed McCarver’s adaptive functioning, outside of his IQ. It further notes that without an assessment of adaptive functioning, intellectual disability can neither be confirmed nor ruled out for individuals who score between 70 and 75 on an individual IQ test.
McCarver died of natural causes in 2014, according to the Independent Tribune.
Pizzuto’s intellectual disability
In 1985, Pizzuto, at age 28, was recorded as having a verbal IQ of 72 on the Wechsler Adult Intelligence Scale. His attorneys argue that IQ scores are only accurate within 5 points.
The state of Idaho’s initial definition of intellectual disability requires that the person’s IQ be 70 or below. His attorneys argue that the Idaho Supreme Court’s application of a “hard IQ-70 cutoff” disregarded the clinical definitions.
According to a February 2021 Idaho Supreme Court opinion, the state submitted evidence showing that in 1996, Pizzuto had a verbal IQ score of 91, a performance IQ score of 94, and a full scale IQ score of 92.
In 2009, Pizzuto scored a 60 on an IQ test, but the federal court determined that the test was weighted because it had been a longer period of time since he was 18 years old, and the court believed he had incentive to underperform on the test.
In another appeal, the federal district court determined Pizzuto’s IQ score was most likely somewhere in the 80s, which is lower than average, but not low enough to be legally deemed intellectually disabled in Idaho.
Additionally, when looking at the Atkins case, the Idaho Supreme Court stated that the U.S. Supreme Court referenced clinical definitions from the American Association on Mental Retardation (now the American Association on Intellectual and Developmental Disabilities) and the American Psychiatric Association when discussing intellectual disability, but did not adopt those definitions. Instead, the U.S. Supreme Court left the decision to the states to define.
Idaho’s definition does include an IQ score.
In the May 10 petition from Pizzuto’s attorneys, asking the U.S. Supreme Court to vacate Pizzuto’s convictions and death sentence, the document states “he is intellectually disabled and therefore immune from execution.”
Pizzuto was granted a commutation hearing, set for November, which will be a public hearing. Until then, his execution is stayed.
The Commission of Pardons and Parole determination during that hearing will be made by a majority vote.
The seven-member commission’s determination will be a recommendation to the governor and be subject to his final approval or disapproval. Any commutation recommendation not approved by the governor within 30 days is deemed denied.
While incarcerated, Pizzuto has developed terminal cancer, has a heart condition and several other serious illnesses. Pizzuto is not asking to be released, just to live out the rest of his natural life in prison.