Second Judicial District Court Judge Jay Gaskill signed the execution decree on Thursday, according to a copy of the death warrant obtained by the Idaho Capital Sun. A spokesman for the Attorney General’s Office also confirmed the judge’s authorization, which starts a 30-day clock to put Pizzuto to death by lethal injection.
The state set a date of June 2 for carrying out the execution of Pizzuto, who is one of eight inmates on Idaho death row. The Marshall Project, a national nonprofit news agency that tracks the country’s criminal justice system, was first to report the development.
Pizzuto, 64, was sentenced to death in 1986 for the slaying of Berta Herndon, 58, and her 37-year-old nephew Del Herndon at a rural cabin. Prosecutors said Pizzuto was armed with a .22 caliber rifle with the intent of robbing the pair of gold prospectors in July 1985 at the Ruby Meadows property in Idaho County, north of McCall. He tied his victims’ wrists behind their backs and bound their legs before bludgeoning them with a hammer, then shooting the younger Herndon in the head, according to an Associated Press report.
Pizzuto would be the first inmate put to death on Gov. Brad Little’s watch if all legal appeals are exhausted and the Republican governor declines to intervene on a formal request made last month that the 35-year death row inmate be granted clemency.
“The District Court in Idaho County has ordered the Department of Correction to carry out the death sentence of Gerald Pizzuto on June 2. The governor will provide support for Director Josh Tewalt and the department to comply with this most solemn of responsibilities,” Little’s press secretary said in a written statement.
Former Gov. Butch Otter, Little’s predecessor when he served as lieutenant governor, twice faced the prospect of executing a prisoner during his three terms in office, following through in both cases. That included July 2012, when convicted murderer Richard Leavitt, 53, was put to death — the last time the state killed an inmate by lethal injection.
Before exiting the state’s lead executive position in January 2019, Otter acknowledged the gravity of the choice to end another human being’s life.
“It was impactful. Very impactful,” Otter said. “Never in my wildest dreams, in all the time I spent running for governor … did I ever think about that. … It is a tough decision.”
Attorneys representing Pizzuto from Federal Defender Services of Idaho argue that their client is already terminally ill, and execution is an “unnecessary exercise, with significant operational and personnel costs for the state,” the petition for clemency filed in April reads. Pizzuto has been in hospice care for more than a year.
“We are very disappointed that the state of Idaho has chosen to pursue execution of our terminally-ill client who is in hospice in the end-stage of his battle with bladder cancer. It is a senseless exercise to seek to execute this broken old man who God will soon take in his own time and serves no meaningful purpose towards the pursuit of justice,” Deborah Czuba, supervising attorney for the organization’s unit that specializes in death penalty cases, said in a written statement.
Requests for comment from state prosecutor LaMont Anderson, who is chief of the capital litigation unit within the Idaho Attorney General’s Office, were forwarded to a department spokesman. Scott Graf, the agency spokesman, declined to comment, citing pending litigation related to Pizzuto’s ongoing appeals process.
Idaho is one of 27 states where capital punishment remains legal. The state’s Department of Correction, which oversees the execution of death row inmates, has in the past few years come under heightened scrutiny due to its unwillingness to release public records detailing the source of lethal injection drugs used in its last two prisoner executions.
Those pair of lethal injections included Leavitt in 2012, who was convicted of the July 1984 slaying and sexual mutilation of 31-year-old Danette Elg at her Blackfoot home, and the November 2011 execution of inmate Paul Rhoades, 54, for the shooting deaths of three people in eastern Idaho in spring 1987. Rhoades’ death marked the first time in 17 years that the state executed a prisoner.
The suppliers of those lethal injection drugs — in each case pentobarbital sodium — were revealed through the release of records after the Idaho Supreme Court ruled in November that prison officials had failed to meet its own public records guidelines and must hand over the documents. The release came about as a result of a lawsuit filed by the American Civil Liberties Union of Idaho on behalf of University of Idaho professor of law Aliza Cover.
The documents show that the Idaho Department of Correction scrambled to obtain the lethal injection drugs used to end Rhoades’ life from a compounding pharmacy in Salt Lake City just over a week before the execution, according to an investigation by the Utah Investigative Journalism Project in partnership with the Salt Lake Tribune. Eight months later, prison officials brought a suitcase filled with more than $10,000 cash aboard a flight to Tacoma, Washington, to buy the pentobarbital used to put Leavitt to death.
Acquiring lethal injection drugs through alternative means has become more common for states that maintain the death penalty as pharmaceutical manufacturers have increasingly curtailed sales to state prisons to kill inmates.
“Some ceased production, and other manufacturers continue to produce it commercially, but restrict their use to health care uses only,” said Dr. Jim Ruble, a lawyer and doctor of pharmacy who teaches courses in pharmacotherapy law and ethics at the University of Utah. “There are surveys and other opinion studies that show the perception about allowing capital punishment in our society is changing. Moral decisions and business decisions come into play of protecting brands, and I think economic drivers as well as religious and moral beliefs are at play.”
If the drugs cannot be secured before a 30-day death warrant expires, an inmate could receive a stay of execution, forcing a state to restart its process. Idaho permits lethal injection as its only means of putting prisoners to death, making the switch in 1982 and performing its first chemical execution in 1994. Prior to that, the state hung death row inmates, last doing so in 1957.
Officials with the Idaho Department of Correction previously acknowledged they are not currently in possession of the drugs necessary to end Pizzuto’s life.
“We are confident that when the time comes, we will have the chemicals necessary to carry out the court order,” Jeff Ray, spokesman for the Idaho Department of Correction, told The Marshall Project on Thursday in an emailed statement.
Reached by email Friday morning, Ray declined to confirm if the agency still lacks the drugs that would put Pizzuto to death or answer questions about how it might procure them, given a death warrant is now active in the state.
“I have nothing more for you on this. I’ll be in touch when I do,” he said.
