By Ruth Brown, Idaho Reports
Idaho U.S. Federal District Judge B. Lynn Winmill is allowing a potential lawsuit to move forward over a claim of cruel and unusual punishment.
Gerald Pizzuto Jr., 65, has been on death row for more than 35 years for the 1985 murders of Delbert and Berta Herndon. Sought by the attorney general’s office, judges have issued death warrants for Pizzuto, with the most recent being issued in May of 2021, November of 2022, and February of 2023.
On Feb. 24, Pizzuto filed a lawsuit against Attorney General Raúl Labrador and the Idaho Department of Correction, claiming the defendants had violated his Eighth Amendment and Fourteen Amendment rights.
On Tuesday, Winmill sided with Pizzuto on the potential for an Eighth Amendment right violation, which allows the case to move forward. The Eighth Amendment prohibits cruel and unusual punishments. The Fourteenth Amendment prohibits the State from depriving any person of life, liberty, or property without due process.
Pizzuto’s complaint argued that the U.S. Supreme Court has previously described punishments to be unconstitutionally cruel “when they involve torture or a lingering death.”
“The setting of multiple execution dates, without the ability to actually carry out the intended execution, constitutes cruel and unusual punishment under the Eighth Amendment,” Pizzuto’s counsel wrote in February. “What Defendants did and are doing to Mr. Pizzuto does not fall within this society’s standards for a constitutional execution. The setting of multiple execution dates has been psychologically traumatizing to Mr. Pizzuto.”
On Tuesday, Winmill agreed that Pizzuto could move forward with the claim that his Eighth Amendment right may have been violated, but denied Pizzuto’s claim that his Fourteenth Amendment right was violated.
“As Pizzuto describes it, Defendants’ repeated rescheduling of his execution is like dry firing in a mock execution or a game of Russian roulette,” Winmill wrote. “With each new death warrant comes another spin of the revolver’s cylinder, restarting the thirty-day countdown until the trigger pulls. Not knowing whether a round is chambered, Pizzuto must re-live his last days in a delirium of uncertainty until the click sounds the cylinder spins again. Defendants’ alleged practice of keeping Pizzuto in a state of perpetual terror by scheduling and re-scheduling his execution, despite knowing that the lethal injection almost certainly will not be performed, plausibly constitutes cruel and unusual punishment in violation of the Eighth Amendment.”
Winmill’s decision only means the court found that the violation is plausible, not that it is proven. That means Pizzuto may seek further litigation.
The attorney general obtained Pizzuto’s most recent death warrant in February, during the Legislative Session. That warrant came just two days after legislators introduced a bill that would allow Idaho to bring back the firing squad as a legal form of execution if lethal injection chemicals are not available.
Ultimately, lawmakers passed that legislation, along with an appropriation to build a facility to accommodate a firing squad.
That 2023 death warrant came after the Idaho Department of Correction had to cancel a previously scheduled execution in 2022 because it could not obtain the needed chemicals. At the time, the only legal form of execution was lethal injection.