The Idaho Supreme Court is expected to decide next year whether prison officials must reveal the past source of their execution drugs. Similar debates are raging in courthouses and statehouses across the United States, but it's not yet clear if rulings elsewhere — including a recent 9th U.S. Circuit Court of Appeals decision that said there is no First Amendment right to the information — will impact the Idaho fight.
Idaho Department of Correction spokesman Jeff Ray said in a statement that prison officials haven't yet discussed the 9th U.S. Circuit ruling with the department's attorneys, and so they haven't yet formed an opinion on whether the ruling will help their appeal.
ACLU attorney Molly Kafka says she doesn't think the federal appellate court ruling will negatively impact University of Idaho professor Aliza Cover's case.
Cover, who is represented by the ALCU, sued the Idaho Department of Corrections after the department largely denied her public record request in 2017. Cover, who studies how the public interacts with the death penalty, was seeking documents about the lethal injection drugs used in the state's two most recent executions.
Earlier this year a state judge said prison officials had to turn over much of the information, including documents that would show the supplier of the drugs used in its last execution seven years ago. The case is now under appeal to the Idaho Supreme Court, and the high court is expected to release a scheduling order for the appeal sometime next month.
On Tuesday, however, the 9th U.S. Circuit Court of Appeals issued a ruling on a similar case out of Arizona.
In that case seven inmates and a First Amendment Coalition argued that journalists should be allowed to hear as well as see what happens in an execution chamber, and that prison officials should be required under the First Amendment to divulge other information about executions, including the source of lethal injection drugs.
The federal appellate court agreed that journalists should be able to hear and see executions, but said there is no First Amendment right to some other execution-related information.
"Of course it's not great to see this opinion come out, but in terms of how it applies to Professor Cover's case, it doesn't address it," ACLU attorney Molly Kafka said. "That case was brought on First Amendment claims, and we're focused specifically on Idaho's Public Records Act and the balancing requirement Idaho's law requires."
In other words, though the federal appellate court said there's not a general First Amendment right to the information, the ACLU believes it's still releasable under Idaho's public records law. Prison officials were required to weigh the benefit of releasing the information to the public against the any potential harm that would be caused by its release, and the ACLU maintains that was never done.
Case law surrounding execution secrecy is continually evolving, as courthouses and statehouses across the nation grapple with the issue. A split Arkansas Supreme Court earlier this year upheld a law that keeps secret information about execution drug makers and sellers, and a Texas Supreme Court said disclosing the source of lethal-injection drugs used in previous executions would put employees of a compounding pharmacy at risk of "physical harm."
Idaho's death row is shrinking
The population of Idaho's death row has been slowly shrinking, in part because some previously condemned inmates have won appeals, been resentenced to life in prison or died of natural causes.
More than 40 people have been sentenced to death in Idaho since the 1970s, but only 3 people have been executed during that span — Keith Eugene Wells died by lethal injection in 1994 after dropping his appeals and demanding to be executed, Paul Ezra Rhoades was executed in 2011 and Richard Albert Leavitt in 2012.
Today, 8 people remain on Idaho's death row:
— Thomas Creech was already serving 2 life sentences for a double murder in Valley County when law enforcement officers said he beat fellow inmate David Dale Jensen to death with a sock full of batteries. He's been on death row since 1983, and his appeal of his conviction in Jensen's murder is still moving forward in federal court. The 9th U.S. Circuit Court of Appeals is asking attorneys for more information in the case.
— Gerald Pizzuto arrived on death row in 1986, convicted of murder in connection with the beating deaths of 2 people in Idaho County. His appeal has focused on whether he has shown that he is intellectually disabled, since federal law prohibits the execution of people with intellectual disabilities. Earlier this year a 3-judge panel of the 9th U.S. Circuit Court of Appeals upheld a lower court's ruling that Pizzuto failed to show he met the criteria to be considered intellectually disabled; Pizutto's attorneys are now asking the full 9th Circuit to consider the case.
— Timothy Dunlap has been on Idaho's death row since 1992, but he also faces the death penalty in Ohio for a separate killing in 1991. Prosecutors said he killed his girlfriend with a crossbow in a Cincinnati park and then 10 days later in Idaho, killed Tonya Crane during a bank robbery in Caribou County. Dunlap's post-conviction relief petition will likely go before the Idaho Supreme Court sometime soon; his appeals on the Ohio case are also moving forward in federal court.
— Robin Row, the only woman on Idaho's death row, was sentenced to death in 1993 in connection with the arson deaths of her husband, son and daughter in Ada County. Her appeal is awaiting a ruling in Idaho's U.S. District Court.
— James Hairston was sent to death row in connection with the shooting deaths of 2 elderly residents; the judge at his trial characterized the murders as executions for money. Hairston was the 19th inmate on Idaho's death row when he arrived in 1996. Now he's 1 of 8 condemned inmates. He has 2 appeals still pending in court.
— Erick Hall has been sentenced to death twice over in 2 separate Boise murders. Prosecutors said he kidnapped, raped and murdered 1 woman in 2000 and a 2nd woman in 2003; investigators noticed similarities between the 2 cases after the 2nd murder. His first death sentence came in 2004 and the 2nd in 2007. He currently has three appeals pending in the 2 cases.
— Abdullah Azad also arrived on death row in 2004 in connection with the arson death of his wife in Ada County. Azad has appeals pending at both the state and federal levels.
— Jonathan Renfro is the newest Idaho death row inmate, condemned in 2017 for the shooting death of a police officer in Kootenai County. His post-conviction relief petition is still pending in court.
Source: The Associated Press, Staff, September 19, 2019
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde