Unable to buy execution drugs, Idaho seeks to shield potential suppliers from scrutiny

From the Idaho Statesman

BY KEVIN FIXLER

Idaho lacks the lethal injection drugs needed to execute a death row inmate, and state prison officials do not expect that to change if lawmakers won’t guarantee stiffer identity protections to potential suppliers.

The assertion by Josh Tewalt, director of the Idaho Department of Correction, was disclosed last week during public testimony over a bill designed to grant legal confidentiality to sources of execution drugs. Suppliers, Tewalt told lawmakers, have been reluctant to provide the drugs to the state if they are not ensured anonymity to avoid possible public backlash for their involvement in ending a human life.

“As I stand in front of you, 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 administrative rule is insufficient to protect their identities.”

Tewalt’s statement conflicts with the state prison agency’s stance on the issue just nine months prior. In May, as Idaho sought a death warrant to execute convicted double-murderer Gerald Pizzuto, department spokesperson Jeff Ray told criminal justice news outlet The Marshall Project by email, “We are confident that when the time comes, we will have the chemicals necessary to carry out the court order.”

The Idaho Department of Correction has otherwise been unwilling for more than two years to say whether it possesses lethal injection drugs, citing ongoing litigation and its own internal guidelines against doing so. Before then, a previous director of the state agency affirmed in a sworn affidavit in September 2016 that IDOC had not had execution drugs on hand since June 2012, when Idaho last executed a death row inmate.

The bill, sponsored by two Republicans, would resolve this apparent insurmountable hurdle in the state’s pursuit of the ability to execute an inmate by way of lethal injection. Idaho maintains a one-drug lethal injection protocol that entails pentobarbital — a potent sedative that can stop a person’s breathing in higher doses, and is a Schedule II controlled substance in the U.S.

A House committee chaired by Rep. Greg Chaney, a Caldwell Republican and co-sponsor of the bill, approved House Bill 658 last week. It is scheduled for a full House vote Thursday.

Chaney and Brian Kane, chief deputy attorney general, each framed the bill during committee debate as an existential question over whether lawmakers wished to preserve the state’s current policy permitting capital punishment. IDOC and the attorney general’s office collaborated on drafting the bill, said Chaney and Scott Graf, spokesperson for the attorney general’s office.

“What’s not before us is a question on the ultimate appropriateness of capital punishment by lethal injection,” said Chaney, adding that he supports the death penalty. “However, functionally speaking, it is. Because, functionally speaking, they don’t have an avenue to move forward. The suppliers aren’t confident enough in the (current) rule to protect their identity.”

Idaho is one of 24 U.S. states that maintains active use of the death penalty. Of those, 19 of them extend some form of the drug supplier or execution participant shield, Chaney said. Idaho could become the 20th. The Idaho Way newsletter A weekly roundup of opinions, commentary and your views from around the region.

CRITICS ARGUE BILL ENDS PUBLIC EXECUTION OVERSIGHT

Chaney, an attorney who wore a scales of justice lapel pin for last week’s committee hearing, also said lethal injection is a more humane method of execution. He hinted that voting down the bill could result in the pursuit of reintroducing other alternatives, such as a firing squad, as South Carolina added in 2021.

“I don’t think you could expect fewer legal challenges to a firing squad,” Tewalt told the committee. “And, more importantly, I don’t feel as the director of the Idaho Department of Correction the compulsion to ask my staff to have to do that.”

In fact, Idaho prison officials explored reinstating the firing squad as recently as 2014, even drafting a bill in collaboration with the attorney general’s office, Graf confirmed. At the time, Ray, the IDOC spokesperson, told the Spokesman-Review that the bill didn’t move forward only because “it would take too much time and money” to implement.

Critics said Chaney’s bill instead allows the state to dodge accountability and appropriate scrutiny by hiding the source of execution drugs. Barring access to the business names of suppliers, including through litigation in a court of law, they argued, prevents legitimate oversight over the purity and effectiveness of the drugs.

Such public review is important in avoiding punishment of inmates that courts could deem cruel and unusual, as prohibited under the Eighth Amendment of the U.S. Constitution, said Lauren Bramwell, policy strategist with the American Civil Liberties Union of Idaho, which opposes the death penalty.

“The state carries out executions on behalf of Idahoans,” Bramwell told the committee. “The public has a right to know the source of lethal injections and the reputability and safety record of drug suppliers. Secrecy around lethal injection hinders open, meaningful and robust discourse about the death penalty.”

Attorneys with the ACLU of Idaho previously represented a University of Idaho law professor who sued the Idaho Department of Correction over its refusal to provide public records that could help identify the lethal injection drug suppliers in Idaho’s past two executions.

After a three-year legal battle, the Idaho Supreme Court sided with the professor and compelled IDOC to deliver the documents, which were later used to name two out-of-state pharmacies that supplied the lethal drugs. Both pharmacies had problematic regulatory histories. The court also ordered IDOC to pay more than $170,000 to cover the plaintiff’s attorneys fees.

During the course of the lawsuit, IDOC’s appointed board, at Tewalt’s recommendation, amended the department’s records disclosure rules to block release of such information going forward. For suppliers, though, Tewalt said last week, that’s proven not enough to sell lethal injection drugs to Idaho.

In response to a question from Rexburg Republican Rep. Ron Nate, about the state’s acquisition of execution drugs in 2012, Tewalt did not directly address his personal involvement in the process. Tewalt was one of two IDOC officials aboard a state-chartered flight back and forth to Tacoma, Washington, bringing with them as much as $15,000 cash to make the after-hours exchange with a pharmacist, according to documents and court depositions from the public records lawsuit.

“I think the important thing to note is that while we’ve chosen to do our talking where it really matters, and that’s in the appropriate legal venue,” Tewalt said. “I would suggest that those chemicals were lawfully obtained, they were tested and verified through an independent third-party, and they were administered in accordance to the law.”

Tewalt has declined repeat interview requests over several months from the Idaho Statesman, and previously said through the department spokesperson that he refuses to discuss execution drugs. A renewed request for an interview received no response Wednesday.

‘WE HAVE TO HAVE A CERTAIN FAITH’ IN GOVERNMENT

A representative of the Idaho Press Club also testified against the bill, citing a degradation of transparency and the Idaho Public Records Act with its approval. If it becomes law, it may lead to an erosion of public trust and confidence in the government, Press Club lobbyist Ken Burgess said. (Many Statesman journalists are members of the Idaho Press Club.)

Republican Reps. Gary Marshall, of Idaho Falls, and Julianne Young, of Blackfoot, rejected the idea in lending their support for the bill. Public records redactions aren’t uncommon to protect people under certain circumstances, and America was founded on an understanding that some actions are classified and held from public consumption, they said.

“We have never accepted the idea that the public has the right to know every detail of what our government does,” Marshall said. “We have to have a certain faith” in elected and appointed decision-makers to use good judgment and carry out the law.

Rep. Colin Nash, a Boise Democrat, disagreed, questioning why Idaho needed to operate covertly to fulfill an inmate’s death sentence if the state’s actions were above board.

“I trust the government to take out my trash,” Nash said. “I don’t trust them to kill people in secret processes. I think this is embarrassing.”

He was joined by Blackfoot Rep. David Cannon — an attorney and the only Republican on the committee to vote against the bill — who labeled the bill’s end result a “wall of secrecy” that left him with constitutional concerns, as raised by the ACLU. Bramwell stated better alternatives would be for Idaho to abolish capital punishment altogether or, absent that, instead consider the firing squad to avoid the execution process being taken further underground.

Chaney tried to allay fears about the bill by noting the lethal injection drugs acquired by the state will continue to be tested to verify their quality, which should eliminate any worries about where they are sourced. The credentials of execution participants will also remain available, he said, so long as they cannot be used to identify individual medical or prison personnel.

“What matters is the finished product,” Chaney said. “In fact, I would argue that the identity of the provider would be wholly irrelevant, except for the strategy of shaming them away from participating.”

Other committee members voiced their own unease over the bill before supporting it for a full vote on the House floor.

“I don’t like this bill, and I don’t like it because I think it’s sad that we’ve gotten to the point where we have to have this bill,” said Rep. Paul Amador, a Coeur d’Alene Republican. “But I don’t see an alternative to this option at this point.”

From the Idaho Statesman

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