By Ruth Brown, Idaho Reports
After an hour-long, somber discussion, the House Judiciary, Rules and Administration Committee moved forward a bill to provide confidentiality to any provider or company that supplies the state with lethal injection execution chemicals.
The bill HB 658, pitched by Rep. Greg Chaney, R-Caldwell, is connected to providing confidentiality around the death penalty, making lethal injection chemicals more accessible to the Idaho Department of Correction. It passed to the floor in a 9-5 vote with a do-pass recommendation.
Should the bill pass, the identity of a drug supplier would also not be admissible as evidence or discoverable in any proceeding before any court. In Idaho’s last two executions by lethal injection, information on where the chemicals came from were only made public after court proceedings.
Should the bill pass, that information in future executions would not be admissible in court.
Chaney told the committee that capital punishment is still legal in Idaho, though the only legal form is through lethal injection.
“The problem is, that currently our ability to carry out the sentence that has been imposed is impaired,” Chaney said. “It’s impared by an inability to procure the lethal injection drugs without protections provided to the identity of those who provide them.”
The two most recent executions by lethal injection Idaho were those of Paul Ezra Rhoades in November 2011 and Richard Leavitt in June 2012. At the time of those executions, IDOC did not disclose where the drugs or chemicals used were obtained. Information about how and where the chemicals for the executions were obtained only saw release after a series of court filings.
Discussion on execution has come to the forefront in Idaho in recent weeks because of Gerald Pizzuto Jr., who narrowly avoided execution in June. He’s been on death row in Idaho for more than 35 years.
IDOC had not disclosed where it plans to obtain the chemicals to be used in Pizzuto’s potential execution.
IDOC Director Josh Tewalt spoke in committee Thursday about the issue around obtaining execution chemicals, but also fielded questions about past executions.
Tewalt said the rules do outline that any chemicals obtained are tested before being used in execution and rules outline the type of chemicals that can be used.
“As I stand here today, 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 (current) administrative rule is insufficient to protect their identities.”
The prior two suppliers, for the executions of Leavitt and Rhoades, have been identified publicly following litigation.
A complaint filed in 2020 in federal court raised concerns around how the chemicals in those executions were purchased. The complaint stated IDOC leadership purchased lethal injection drugs with a suitcase full of cash in a Tacoma parking lot in 2012. That case, filed on behalf of two men on Idaho’s death row, claimed the state violated the men’s rights by making plans to execute them “while providing them essentially zero information about its plans on how it will do so.”
Tewalt stressed that the question before the committee was not about whether capital punishment is legal, because “today it is.”
Rep. Ron Nate, R-Rexburg, questioned Tewalt about a newspaper story he read about IDOC being accused of using a state chartered flight and $15,000 in cash to purchase the drugs. He asked what this bill would do to change the process.
Tewalt said that account is part of litigation.
“Those chemicals were lawfully obtained, they were tested and verified by an independent third party, and they were administered in accordance to the law,” Tewalt told Nate.
Rep. Colin Nash, D-Boise, also addressed the reports about how the last execution’s chemicals were obtained.
When he read about allegations of how the last execution chemicals were obtained, Nash said “I have probably never been more embarrassed to be an Idahoan when I found out how our government handled the last execution. I think this is embarrassing and I don’t think our government should be in the business of carrying executions in secret processes.”
Nash took issue with redacting the names of manufacturers.
Chaney’s bill would also prevent any provider, pharmacy, or compounding pharmacy from being reprimanded by a licensing board. That section states “if any person who participates or performs ancillary functions in an execution is licensed by a board, the licensing board shall not suspend or revoke the person’s license, or take disciplinary action against the person, because of the person’s participation in an execution.”
In Idaho, the Division of Occupational and Professional Licenses makes public any reprimands received by a licensee but complaints and investigations are not subject to public record.
Chaney has said he supports the death penalty as a sentencing option.
The death penalty is also the only sentence in Idaho imposed by jurors, rather than a judge.
The bill does have an emergency clause, meaning it would go into effect at the time of its passage. So, should IDOC execute Pizzuto under the bill’s effect, the department would not be compelled to disclose where the chemicals or drugs it uses came from.
Lauren Bramwell with the ACLU of Idaho spoke in opposition to the bill.
“The truth is that secrecy will not make lethal injection drugs more accessible,” Bramwell said. “Instead it will create a costly, lengthy political nightmare for Idaho, undermining business interests, putting public health at risk and wasting taxpayer money on drugs procured in violation of private contracts and the principles of open government.”
Rep. David Cannon, R-Blackfoot, asked Bramwell if her testimony was an indirect way to oppose the death penalty, rather than the bill. While the ACLU does oppose capital punishment, Bramwell said the ACLU of Idaho has concerns about governmental transparency and accountability.
“Perhaps a better alternative would either be to look to abolishing the death penalty or look to a firing squad as opposed to looking to this veil of secrecy that would be created by the state in this case,” Bramwell said.
Rep. Paul Amador, R-Coeur d’Alene, asked Tewalt if the bill was the only option or was it the easiest option.
“I don’t think something this important should be easy,” Tewalt said. “I don’t think it should be without scrutiny. It deserves the attention. But I also don’t think it should be impossible to carry out.”
He said the difficulty of acquiring the chemicals remains an issue. The state could use other methods of execution, such as a firing squad, but he anticipates as many legal challenges with that.
“More importantly, I don’t feel as the director of the Idaho Department of Correction the compulsion to ask my staff to do that,” Tewalt said in reference to the firing squad comments.
Rep. Gary Marshall, R-Idaho Falls, said “we have never accepted the idea that the public has the right to know every detail of what the government does.”
So, Marshall said, he was comfortable with keeping supplier names confidential, saying “we have to have a certain faith” in our government.
“I trust the government to take out my trash,” Nash said. “I don’t trust them to kill people in secret processes. I am very uncomfortable with this idea.”
Issues with supply
The chemicals or drugs used in lethal injection executions are getting more and more challenging to obtain, in part because providers do not want to provide chemicals that will be used to kill a human.
Additionally, the chemicals are not regulated by the FDA and they cannot be prescribed by a physician. A 2019 opinion from the Department of Justice found that FDA does not have jurisdiction over drugs used in lethal injection.
The 2019 opinion states “articles intended for use in capital punishment by a state or the federal government cannot be regulated as “drugs” or “devices” under the FDCA. FDA accordingly lacks jurisdiction to regulate such articles for that intended use.”
The Commission of Pardons and Parole did grant Pizzuto a commutation recommendation, recommending life in prison without the possibility of parole. Gov. Brad Little denied the recommendation, but a district judge found the denial could be unconstitutional.
Little will appeal that decision to the Idaho Supreme Court.
Meanwhile, Pizzuto remains incarcerated and the district judge has said he will not sign a death warrant in the case until appeals are resolved.
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. 17, the court had not issued an opinion in that case.