UPDATE: Clemency for death row inmates extremely uncommon. Will Idaho execute a dying man?

The decision will delay until at least November the state’s first inmate execution since 2012

By: - May 18, 2021 6:52 pm
scales of justice

Idaho’s Commission of Pardons and Parole on Tuesday granted a petition for a clemency hearing for convicted double-murderer Gerald Pizzuto Jr., delaying until at least November the state’s first inmate execution since 2012. (Courtesy of Getty Images)

Just two weeks before Idaho’s first execution since 2012, the state’s Commission of Pardons and Parole on Tuesday granted a petition for a clemency hearing for convicted double-murderer Gerald Pizzuto Jr., delaying his scheduled death until at least November.

Pizzuto, 65, was set to be put to death by lethal injection on June 2 after a district court judge signed his death warrant earlier this month. The pardon commission’s decision, made in closed executive session, led to Second Judicial District Court Judge Jay Gaskill, who previously issued Pizzuto’s death warrant, signing off on a stay of execution until the prison board’s review to consider lessening the death row inmate’s sentence is completed.

Gerald Pizzuto Jr. was convicted in 1986 for the slayings of two gold prospectors.
Gerald Pizzuto Jr. was convicted in 1986 for the slayings of two gold prospectors — an aunt and nephew — at a rural cabin in Ruby Meadows, north of McCall.

Pizzuto was convicted in 1986 for the slayings of two gold prospectors — an aunt and nephew — at a rural cabin in Ruby Meadows, north of McCall, in the midst of robbing them during the summer of the prior year. Surviving family of Berta Herndon, 58, and Del Herndon, 37, previously said they supported the death penalty for Pizzuto.

“When they murdered Berta they took my life away too. If I had my way, Pizzuto would get death by firing squad,” said Berta Herndon’s husband, whose name is also Del Herndon, according to court records.

Pizzuto was sentenced to death and has spent more than three decades on Idaho death row. Since the death warrant was issued on May 6, attorneys representing Pizzuto have submitted several legal filings, including to the U.S. Supreme Court, seeking leniency for their client.

Federal Defender Services of Idaho argue that Pizzuto is terminally ill, suffering from late-stage bladder cancer, among other severe ailments, and has been in hospice care for more than a year. He is not expected to survive much longer, Pizzuto’s prison doctors have stated.

“Mr. Pizzuto has spent 35 years on death row and is now dying from cancer and other diseases. He also was brutalized throughout his childhood by his stepfather, a serial pedophile and sadistic man who beat, raped and humiliated him on a regular basis for years,” said Deborah Czuba, a supervising attorney for Federal Defender Services of Idaho. “We look forward to proving that he deserves mercy. Our hope is that he will be allowed to die naturally in prison.”

Clemencies are extremely uncommon, at no more than a handful per year across the nation, according to data from the Death Penalty Information Center, a Washington, D.C.-based nonprofit that neither advocates for nor against capital punishment. Fewer than 300 clemencies have been issued nationally since 1976, when the United States reinstated the death penalty. Of those, just 87 — an average of about two per year – were unrelated to states already in the process of abolishing the death penalty.

“It is exceptionally rare,” said Robert Dunham, the Death Penalty Information Center’s executive director, adding that the clemency review process often lacks transparency. “You have a right on paper, and you get to file your petition, but the review tends to be perfunctory and, most of the time, no explanation is provided as to why clemency was denied.”

Since 1977, when Idaho reestablished capital punishment, the state has issued just one order of clemency, while executing three inmates over the same period of time – the last in 2012. In 1996, then-Gov. Phil Batt spared the life of convicted murderer Donald Paradis over concerns that he was innocent. Five years later, Paradis was released from prison a free man.

Pizzuto was one of three men convicted of being involved in the deadly robbery in July 1985, but received the harshest punishment, while his two co-defendants served lighter sentences and eventually left prison. Whether Idaho’s prison review board may grant Pizzuto clemency to avoid the death penalty at its November hearing — assuming he lives that long — is unclear.

“Gerald Pizzuto is going to die. The question at this point is whether Idaho wants to be merciless in the way it carries out the death penalty,” Dunham said. “If that’s what Idaho wants to do, then that is a choice that will stain the state’s reputation nationally and around the world.”

Neither Gov. Brad Little, who has the final say to grant pardons to inmates on death row, nor his office have addressed the latest development in the state’s plan to execute Pizzuto. A spokeswoman for the governor earlier this month issued a written statement saying Little would support the state’s Department of Correction in complying with “the most solemn of responsibilities,” but did not respond to emails Tuesday and Wednesday seeking comment.

In a Tuesday evening email to staff following the announcement of the pardon commission’s decision, Josh Tewalt, director of Idaho’s Department of Correction, thanked all prison personnel for their professionalism throughout the process, and laid out the next steps.

“Mr. Pizzuto will be returned to his previous housing assignment,” Tewalt wrote. “The stay will continue at least until November, and we don’t anticipate any changes in status prior to that time. I’ve asked (Prisons) Chief (Chad) Page to stand down and demobilize the execution-related Incident Command.”

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Kevin Fixler
Kevin Fixler

Kevin Fixler is an investigative reporter on the Idaho Statesman's accountability team. He comes from The Press Democrat in Santa Rosa, California, where he tracked local government and transportation for more than three years. Kevin grew up outside of Denver and graduated with a degree in journalism and American history from the University of Denver. He received his master’s degree from the University of California, Berkeley, with a focus on narrative writing. He has written freelance articles for The Atlantic, The Guardian, The Daily Beast and other outlets, and was a special projects reporter at the Summit Daily News in Breckenridge, Colorado.

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