By Ruth Brown, Idaho Reports 

The Senate Judiciary and Rules Committee held a bill Friday afternoon that would have made lewd conduct with a child younger than age 12 punishable by death.  

HB 515 would have amended the maximum sentence for the crime of lewd conduct with a child under age 12, which is currently punishable by up to life in prison. Prosecutors would have been responsible for deciding whether to pursue the death penalty as a sentencing option in a case. 

Most states in the country only use the death penalty for murder convictions. In part, this is because in 2008 the U.S. Supreme Court found in Kennedy v Louisiana that sentencing a person to death for any crime other than homicide or crimes against the state, such as terrorism, is unconstitutional per the Eighth Amendment’s protection against the infliction of cruel and unusual punishment.  

Bill sponsor Rep. Bruce Skaug, R-Nampa, has previously said that the Supreme Court justices who supported the 2008 decision are no longer on the court.  

The timing of the bill is worth note, as on Feb. 28 the Idaho Department of Correction was unable to execute Thomas Creech, the longest-serving man on Idaho’s death row.  

It’s unclear if IDOC is capable of executing an inmate, should a new death warrant be issued. 

IDOC Director Josh Tewalt recently answered questions from legislators about the failed Creech execution and problems the state faced implementing the firing squad as an execution method. 

Some legislators have taken issue with the bill potentially increasing the number of people on death row.  

In 2022 alone, Idaho prosecutors filed 217 cases charging adults with lewd conduct with a child under 16, according to Idaho Supreme Court data. Not all of those cases involved children younger than 12.  

Meanwhile, Idaho State Police reported 51 murders statewide in 2022. Not all of those cases would have been first-degree murder, which is the only charge currently punishable by death. 

Co-sponsor Rep. Josh Tanner, R-Eagle, characterized HB 515 as a child protection bill, saying the victims forever suffer an injustice because of the crime. 

“I don’t think we’re gonna have hundreds of people on death row because of this,” Tanner told the committee. 

Anthony Geddes, chief public defender in Ada County, opposed the bill. He said his office defended about 73 lewd conduct cases in 2023 and his office would need significantly more death penalty qualified attorneys then he has now, should the bill pass. 

“No one disputes that these are atrocious crimes. They are,” Geddes said. “But I would also point out that they already receive very harsh penalties.” 

Geddes told the committee that a life sentence means a person will die in prison, and that shouldn’t be taken lightly. He believed a sentence of death for a sex crime is unconstitutional.  

Anne Taylor, Kootenai County Public Defender, explained that in a capital crime, a judge has 14 days to assign a capital defense team, before prosecutors have even determined if they plan to pursue the death penalty.  

“Idaho is not staffed or prepared for this,” Taylor told the committee. 

Erik Lehtinen, Idaho State Appellate Public Defender, explained that his office would handle capital cases post-conviction. If even .5% of the lewd conduct convictions resulted in the death penalty, he anticipated needing 14 new employees, and his current office only has 26 employees. 

“This is a massive lift that would really blow up our agency,” Lehtinen said.  

Lehtinen said capital cases also take much longer and the appeals are much longer, so he questioned if a victim would have to come back and repeatedly testify, revictimizing them.  

Idaho State Public Defender Eric Fredericksen said every lewd conduct case is atrocious and heinous, so many would qualify for the death penalty under the bill. He stressed that capital cases start from day one, not when the prosecutor announces their intent to pursue the death penalty, and the cases would require specialized staffing.  

“General deterrence is not a factor for these types of cases,” Fredericksen said.  

Testimony in support of the bill came from either adults who were victimized as children, or people who worked with these types of offenders.  

“I think it’s a more harsh penalty to be life in prison, with the way other prisoners feel about (sex offenders),” said Sen. Linda Wright-Hartgen, R-Twin Falls. 

Sen. Abby Lee, R-Fruitland, questioned whether the requirement of additional resources would deter prosecutors from charging lewd conduct, charging an offender with a lesser crime instead.  

Sen. Kelly Anthon, R-Burley, made a motion to send the bill forward to the Senate floor, but the motion failed in a voice vote.  

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