Execution drug supplier secrecy bill held in committee

By Ruth Brown, Idaho Reports

The Senate Judiciary and Rules Committee on Wednesday held a bill that would have allowed the state to keep confidential the names of suppliers who provide the state with lethal injection chemicals. 

The bill held in a 4-4 vote due to a tie. Sens. Grant Burgoyne, Christy Zito, Melissa Wintrow and Doug Ricks all voted to hold the bill. Sen. Patti Anne Lodge was absent Wednesday from committee.

House Bill 658 narrowly passed the House in a 38-30 vote.

Testimony focused on the fact that the name of the supplier would also not be discoverable in court, should an execution go wrong. 

Lethal injection is the sole legal form of execution in Idaho. Capital punishment is the only sentence that is recommended by jurors, rather than a judge, in Idaho. It is only used in first-degree murder cases. 

The Idaho Department of Correction said it is unable to obtain the execution chemicals without being able to guarantee the supplier, such as a compounding pharmacy, anonymity. 

IDOC Director Josh Tewalt noted that the department’s standard operating procedures are all public, and any chemicals used will be tested to ensure potency and quality before use in an execution.

“We have been unable to secure the chemicals necessary to carry out lethal injection in Idaho,” Tewalt told the committee on Wednesday. 

Tewalt said the bill was not a question of whether capital punishment should be legal, because as of today, it is.

The two most recent executions by lethal injection in 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 state obtained the drugs or chemicals used. The state released information about how and where IDOC obtained the chemicals for the executions only after a series of court filings.

If HB 658 passed, the identities of the chemical suppliers would not have been admissible as evidence in court, nor would they be discoverable in court, as they were after Rhoades’ and Leavitt’s executions.

Former Idaho U.S. District Judge Ronald Bush spoke in opposition to the bill. Bush is retired, but before Rhoades’ execution, he wrote a decision denying Rhoades’ request to stop his execution. That decision was upheld by a higher court. 

“At the time I conducted those proceedings, I had no idea and the Department of Correction did not bring to my attention, even though they were well aware that I was concerned about the hasty manner in which the state was going about this execution, I had no idea that they hadn’t obtained the execution drugs,” Bush said.

That was about a week before the execution date. Bush said it wasn’t until later, after the execution, that he learned of the way IDOC obtained the execution drugs.

“I don’t know if that information would have caused me to think differently than I did, but it certainly would have been something I looked at carefully and wanted to hear from the parties about,” Bush told the committee.

Bush said he was speaking only as a private citizen, not on behalf of the court. 

He said the proposal deserved scrutiny and asked that the committee hold off on making a decision until they hear from all of the stakeholders. 

He took issue with the information about chemical suppliers’ anonymity both not being public but also not being admissible in court.

“If we don’t have to have a black box, then let’s not have one,” Bush said.

Bush also stated there have been “sometimes horrific and even barbaric circumstances in lethal injection execution,” raising 8th amendment concerns. The 8th amendment protects against cruel and unusual punishment. Bush said the condemned person’s counsel needs that information. 

The Idaho Attorney General’s Office supported the legislation, arguing it was necessary for IDOC to carry out an execution by lethal injection. 

Burgoyne took issue with the idea that lethal injection was more humane than other forms of execution. 

“I think lethal injection is a lie. It is as if you’re selling the idea that this is just putting your pet to sleep. That’s not what it is,” Burgoyne said. “And then in order to perpetuate that lie, we have to lie and lie and lie and lie again. That’s a terrible position to put our public servants in. …It’s wrong. It’s unfair. It needs to stop.”

Sen. Todd Lakey, R-Nampa, supported the legislation. 

“What we’re talking about here is really practical application purposes, whether we support the death penalty or capital punishment in Idaho,” Lakey said. “Those that have sought to challenge that in court have failed. They found a way to challenge that by harassing or confronting those individuals that are involved or those companies that are involved as far as providing the drugs for the death penalty.”

He thought those suggesting another method of execution are likely unsupportive of capital punishment.

“The courts have determined that lethal injection does not violate the constitution and is not cruel and unusual punishment in this context,” Lakey said.

Discussion on executions came to the forefront in Idaho in recent months after Gerald Pizzuto Jr., narrowly avoided execution in June. Pizzuto has been on death row in Idaho for more than 35 years for the 1985 deaths of Berta and Delbert Herndon. 

Pizzuto’s execution is temporarily stayed while court appeals are ongoing.  

After the hearing, Idaho Reports asked IDOC how it would move forward.

“As he noted in his testimony, Director Tewalt appeared before the committee not as an advocate for the death penalty but to inform policymakers of the conditions necessary to carry out executions in Idaho,” said IDOC spokesperson Jeff Ray. “We respect the process. It will be up to those policymakers to decide what’s next for the legislation.”

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