Judge sides with Pizzuto over commutation denial 

By Ruth Brown, Idaho Reports

On Friday afternoon, 2nd Judicial District Judge Jay Gaskill issued a written opinion out of Idaho County, saying the governor’s recent denial of commutation for a man on death row could be in violation of the constitution.

Gerald Pizzuto Jr., 65, has been on death row for more than 35 years for the 1985 murders of Delbert and Berta Herndon. In December, 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, per the Idaho Constitution. 

In his 20-page opinion, Gaskill wrote “When considering Article IV, Section 7 (of the Idaho Constitution) in its entirety, the plain meaning of the words give the Commission the power ‘to grant commutations and pardons after conviction and judgment’ and the governor the power to ‘grant respites or reprieves in all cases of convictions for offenses against the state…’ If the drafters intended to allow the governor to have the power of commutation, which is greater than the power to grant respites and reprieves, the drafters could have specifically stated this when they drafted Article IV, Section 7. There are constitutions that give commutation power to the governor.”

Gaskill’s opinion outlined the history behind the Idaho code that the state believes gave the governor the power to deny the commutation. 

“When considering the ultimate penalty of death, this Court will err on the side of caution regarding which entity has the ultimate say in whether the sentence of death should be commuted,” he wrote. 

Some of the arguments revolved around a 1986 amendment made to the state constitution regarding commutation. That amendment, approved by voters, did not specify that the voters would be granting commutation power to the governor.

Gaskill wrote in his opinion he was not satisfied that the amendment means that the legislature had the authority to shift commutation denial to the governor. 

“This Court will not issue a death warrant in this matter while there are appeals pending in the case,” he wrote. 

The Governor’s Office issued the follow statement in response to the decision:

“One judge agreed with the federal defender that Idaho Code violated the Constitution. Governor Little has followed the Constitution and Idaho Code as written. Governor Little will challenge this ruling because the state must have the ability to carry out the death penalty as ordered by the court in this case. Pizzuto was convicted of rape, robbery and four brutally gruesome murders. This matter is now left for a higher court to ultimately decide.”

Deborah Czuba, supervising attorney for the Capital Habeas Unit of the Federal Defender Services of Idaho, issued a statement Friday evening on the opinion. 

“We are grateful that the court upheld the just and merciful decision by the Parole Commission to let Jerry Pizzuto die in prison. As the court recognized, the Idaho Constitution wisely leaves commutation decisions to the Commissioners, who the Governor appoints based on their judgment and expertise in such matters,” Czuba wrote. “The people of Idaho have not given the Governor the power to interfere in the commutation process, and as the court found he acted illegally here. We hope the State will now do the right thing and finally allow a dying man to pass away of natural causes in prison, rather than continuing to fight for an unnecessary execution through costly litigation at taxpayer expense.”

Meanwhile, Pizzuto remains incarcerated by the Idaho Department of Correction. 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 Feb. 4, the court had not issued an opinion in that case.


<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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