Idaho death row inmate Gerald Pizzuto, center, attends his clemency hearing on Nov. 30, 2021. Bruce Livingston, left, one of Pizzuto’s attorneys with the nonprofit Federal Defender Services of Idaho, sits at his left, with other members of his team also on hand. (Screenshot)
This story was first published on Nov. 30, 2022, on Idaho Reports.
The state of Idaho no longer plans to execute Gerald Pizzuto Jr. on Dec. 15 after being unable to obtain the necessary chemicals for his scheduled lethal injection killing.
The Idaho Attorney General’s Office filed a notice with the court Wednesday, just 15 days out from the execution date, stating it will allow the death warrant to expire.
“While our efforts to secure chemicals remain ongoing, I have no reason to believe our status will change prior to the scheduled execution on December 15, 2022,” wrote IDOC director Josh Tewalt in a memorandum. “In my professional judgement (sic), I believe it is in the best interest of justice to allow the death warrant to expire and stand down our execution preparation. While the warrant remains active, Mr. Pizzuto will be housed in a manner consistent with Idaho Code.”
Pizzuto, 66, remains on death row after being convicted in the 1985 deaths of Berta Herndon and her nephew Delbert Herndon outside of McCall. His two co-defendants, William Odom and James Rice, were given lesser sentences for their roles in the crime.
Lethal injection is the only form of legal execution in Idaho. Pizzuto’s execution had been scheduled for Dec. 15 after an Idaho County judge signed his death warrant.
The Idaho Legislature did pass a bill this year that granted the suppliers and manufacturers of lethal injection chemicals anonymity, but apparently that still wasn’t enough for the Idaho Department of Correction to obtain the drugs.
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Chemicals used in lethal injections are not regulated by the FDA, and they cannot be prescribed by a licensed physician. A 2019 opinion from the Department of Justice found that FDA does not have jurisdiction over drugs used in lethal injection.
“Articles intended for use in executions carried out by a State or the federal government cannot be regulated as “drugs” or “devices” under the Federal Food, Drug, and Cosmetic Act,” the 2019 opinion states. “The Food and Drug Administration therefore lacks jurisdiction to regulate such articles intended for that use.”
Some states, including Utah, have brought back the firing squad as an execution option in recent years because of the problems obtaining chemicals for lethal injection.
The two most recent executions by lethal injection in Idaho were those of Paul Ezra Rhoades in November 2011 and Richard Leavitt in June 2012.
Suspending Idaho Department of Correction protocols
In a Nov. 16 press release, the same day IDOC served Pizzuto his death warrant, IDOC acknowledged it did not have the necessary chemicals for a lethal injection, and said Tewalt had suspended implementation of the standard operating procedures concerning executions, except for portions ensuring due process. The press release said the standard operating procedure suspension would remain in place “until such time as he anticipates a change in the material ability to carry out an execution.”
The standard operating procedure the press release referred to has been in place since March 30, 2021, and was approved by Tewalt.
But on the first page of the document, there is a note stating the director can change the standard operating procedure at any time.
“This SOP is subject to revision at the discretion of the director of the IDOC,” it says. “The director may revise, suspend, or rescind any procedural steps, at any time, at the director’s sole discretion.”
The policy is not law, but the written purpose says the intent is “to establish specific procedures for administration of capital punishment in accordance with the Idaho Code and the constitutions of the United States of America and the State of Idaho.”
It was unclear if the state had suspended all protocols around the execution. The 32-page document outlines protocol around execution witnesses, security, and preparations for the condemned.
Idaho’s lethal injection law
Concerns over lethal injection chemicals are nothing new, and the Idaho code concerning capital punishment has changed over the years as the legal and ethical landscapes have shifted.
The law grants power to the IDOC director to move executions forward. Idaho Code 19-2716 states the lethal injection executions shall be approved by the director, and he or she “shall determine the procedures to be used in any execution.”
That statute was initially drafted in 1864 but was amended by the Legislature in 1978 and again in 1982 and 2009 to change the methods of execution used in Idaho.
The history of the law, obtained through the Idaho Legislative Services Office, outlines that the change in execution law came for several reasons.
The 1982 change
The 1982 change came when the state allowed the IDOC director to use a firing squad when the use of lethal injection became impractical.
Meeting minutes from the legislation’s hearings show that IDOC supported the change, as the American Medical Association had taken the position that medically trained persons couldn’t inject lethal substances.
“This bill would provide an option if the department is unable to get anyone to participate in the injection of a death-causing drug,” the minutes said.
Despite the passage of the bill, the state never used the firing squad between 1982 and 2009. The only execution performed in that time was on Keith Eugene Wells, who died by lethal injection in 1994.
The 2009 change
The 2009 change to the law came when the state removed the firing squad as an option, following a Supreme Court case, Baze vs Rees, that involved the Kentucky Department of Corrections.
The 2009 legislation change eliminated the use of the firing squad and rather than a licensed physician declaring the condemned person’s death, a coroner or deputy coroner would be able to declare the death.
Minutes from the 2009 legislative hearing show a deputy attorney general telling legislators that the U.S. Supreme Court at the time determined “humane lethal injection protocol” does not constitute cruel and unusual punishment.
The 2022 change
This year, the Legislature added a section to Idaho Code 19-2716A granting anonymity to suppliers and manufacturers of the chemicals used in lethal injections.
At the time, IDOC officials made clear that they are unable to obtain the chemicals because suppliers fear negative publicity if their name became public. With the bill’s passage, the identity of a drug supplier also is not admissible as evidence or discoverable in any proceeding before any court.
Despite some legislators taking issue with the secrecy behind the change, the bill ultimately passed.cancelled-11-30
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