Arguments over commutation legality go before Idaho judge

By Ruth Brown, Idaho Reports

Idaho District Judge Jay Gaskill heard arguments from Gerald Pizzuto Jr.’s attorney on Thursday, asking the judge to stop the state from executing his client.

Pizzuto, 65, has been on death row for more than 35 years and last month the Idaho Commission of Pardons and Parole recommended his sentence be commuted to life in prison, but Gov. Brad Little denied the recommendation. 

Pizzuto’s attorneys argue that Little does not have the constitutional authority to deny the commission’s recommendation. 

In his rejection letter, Little called Pizzuto’s 1985 crimes brutal and senseless.

The commission’s commutation hearing on Nov. 30 for Pizzuto included arguments from his attorneys and family, as well as the victims’ family.

Pizzuto is terminally ill and suffers from bladder cancer, a heart condition and several other medical complications.

A copy of the decision from the commission states that the majority of the members supported commuting Pizzuto’s two death sentences to sentences of life without the possibility of parole. 

They said they did not doubt Pizzuto’s guilt, but the recommendation was an act of mercy. 

Pizzuto was convicted in the 1985 deaths of Berta Herndon and her nephew Delbert Herndon outside of McCall. His two co-defendants, William Odom and James Rice, were given lesser sentences for their roles in the crime. 

In the petition to the Idaho County court, Pizzuto’s attorneys wrote “The Governor’s veto here was consequently unlawful, and had no legal effect on the Commission’s decision, which commuted Mr. Pizzuto’s death sentences.”

They claim the governor’s action should be void.

“Mr. Pizzuto’s (death) sentences were commuted as a matter of constitutional law as soon as a majority of the Commission released its decision to reduce them to life. The Idaho Constitution gave the Governor no say in the matter,” attorneys wrote.


In arguments Thursday, Jonah Horwitz, of the Federal Defender Services of Idaho, represented Pizzuto.

Horwitz focused on commutation power, stating commutation power was vested in 1945 to the parole commission. In 1986, there was an amendment to the state constitution, approved by voters, but it did not specify that the voters would be granting commutation power to the governor.

He focused on the argument that the commission holds the commutation power, according to the constitution. 

“The Constitution obviously trumps any law the legislature may pass,” Horwitz said.

Deputy Attorney General LaMont Anderson argued in exchange that the power to commute a sentence is not vested in the commission, saying it’s vested in the legislature, which set the law on commutations in Idaho. The legislature gave the governor the power to veto a commission decision, he argued. 

The governor is responsible for appointing the commission members. 

“Having the governor act as the check and balance of his appointees is a good policy,” Anderson said.

Additionally, Anderson said when the commission granted its recommendation, it did not do so under the belief that the commission was the final arbiter of the decision.

He called the filing from Pizzuto “a preemptive strike on the state’s ability to ask for a death warrant.” 

After an hour, Gaskill told the attorneys he would issue a written opinion at a later date. 

Ongoing issues

Pizzuto’s attorneys went before the Idaho Supreme Court on Nov. 1, taking issue with the Idaho Department of Correction’s execution procedure. As of Jan. 20, the court had not issued an opinion in that case.

IDOC has not disclosed where the department plans to obtain the drugs or chemicals used in Pizzuto’s potential execution.

<strong>Ruth Brown</strong> | Producer
Ruth Brown | Producer

Ruth Brown grew up in South Dakota and her first job out of college was covering the South Dakota Legislature. She’s since moved on to Idaho lawmakers. Brown spent 10 years working in print journalism, including newspapers such as the Idaho Statesman and Idaho Press, where she’s covered everything from the correctional system to health care issues. She joined Idaho Reports in 2021 and looks forward to telling stories about how state policy can impact the lives of regular Idahoans.

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