By Ruth Brown, Idaho Reports
The Idaho Supreme Court has sided with Gov. Brad Little, agreeing he has authority to deny a commutation recommendation for Gerald Pizzuto Jr.
Pizzuto, 66, narrowly avoided execution last summer and has been on Idaho’s death row for nearly 37 years.
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 December 2021, the Commission of Pardons and Parole voted 4-3 to grant Pizzuto a commutation recommendation, meaning he’d serve life in prison rather than death.
Little denied the commutation recommendation shortly after. Pizzuto’s attorneys sued, arguing Little did not have the authority to deny the Commission’s recommendations.
The commission’s commutation recommendation was largely one of mercy, as Pizzuto has stage 4 bladder cancer, heart disease, several health conditions and is not expected to live much longer.
The state and Little cited Pizzuto’s lengthy criminal history in its pursuit of the death penalty.
In its opinion, the court focused on the governor’s powers, as well as whether the laws passed by the Legislature comply with the Idaho Constitution.
“Importantly, this is not a question of whether the Governor has overstepped his statutory authority; no one contends that the Governor acted inconsistently with the authority granted him under Idaho Code section 20-1016,” which governs pardons and commutations, the opinion says. “Rather, the question before us is whether the Idaho Legislature violated the Idaho Constitution by adopting section 20-1016, which effectively grants the Governor power to review the Commission’s recommendation in cases ‘for which the maximum punishment allowed by law at the time of sentencing is death or life imprisonment.’”
The majority of the court found that the governor does have that power.
“Just as a governor cannot directly introduce legislation, the governor cannot initiate clemency proceedings, conduct those proceedings, or independently exercise either the pardon or commutation power,” the court wrote. “Nor can the governor alter the Commission’s recommendation. Rather, the governor — as the only elected official associated with the process — provides an internal check-and-balance in extreme cases where a defendant faces the ultimate punishments of criminal justice: life imprisonment or death.”
Justice Robyn Brody and substitute Justice Joel Horton concurred with the rest of the court, but disagreed in part with the majority regarding the constitutionality of the governor’s power.
“I find it significant that this constitutional provision does not explicitly confer authority to the legislature to define which individual or body will possess clemency powers. Instead, those powers are specifically vested in the Commission,” wrote Horton, who sat in for Justice Colleen Zahn. “Likewise, I find it significant that the language of the constitution does not extend the power to the executive branch broadly, or to the governor specifically.”
Regardless, the court unanimously agreed that Idaho law does not affirmatively grant the Commission authority to commute Pizzuto’s sentence. The case will be remanded back to the district court.
In February, Idaho County District Judge Jay Gaskill agreed to temporarily halt Pizzuto’s execution, but now that the Supreme Court has issued its opinion, a new death warrant could be issued.
Deborah A. Czuba, supervising attorney for the Capital Habeas Unit of the Federal Defender Services of Idaho, issued the following statement Tuesday:
“We are obviously disappointed and devastated by the Court’s decision. We hope the Governor
will take a closer look at all the reasons the Idaho Commission of Pardons and Parole issued a rare
recommendation of clemency for Mr. Pizzuto. Any aggressive pursuit of a death warrant at this
point for Mr. Pizzuto would not only be barbaric, but also a clear waste of time, resources, and
taxpayer money. We believe the Commission of Pardons & Parole made a compassionate and
reasoned decision, and that there is still time for Gov. Little to take the wise and moral action to
allow Mr. Pizzuto to die a natural death in prison.”
Pizzuto remains in custody with the Idaho Department of Correction.
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.
