Department of Correction officials previously struggled to obtain lethal injection chemicals, leading to bill to allow firing squad as alternative under Idaho law

By Clark Corbin / / November 2, 2023

After being unable to do so for years, Idaho officials have obtained chemicals necessary to carry out an execution by lethal injection.

However, state laws recently passed by the Idaho Legislature protect the identities of anybody who sells, supplies, transports, dispenses, compounds, synthesizes, procures or prescribes the chemicals or substances for use in an execution.

In 2022, the state had to call off the scheduled execution of Gerald Pizzuto Jr. because the Idaho Department of Correction was unable to obtain the chemicals to administer a lethal injection, Idaho Reports reported. At the time, lethal injection was the only method of execution allowed under state law. Pizzuto’s execution has been scheduled and called off several times.

During the 2023 legislative session, the Idaho Legislature passed House Bill 186, which adds the firing squad as an alternative method of execution if the state is unable to administer lethal injection. That law took effect July 1, but the secure facility needed to carry out an execution by firing squad is still in the design and scoping phases, correction officials said this week. There is not yet a timetable for the secure facility’s completion, Idaho Department of Correction public information officer Jeff Ray said.

Meanwhile, on Oct. 12, District Judge Jason Scott signed a death warrant scheduling the execution of another death row inmate, Thomas Eugene Creech, for Nov. 8, Idaho Reports reported. Creech’s execution has since been put on hold for a commutation hearing, which delays the execution.

As for Pizzuto, he filed a lawsuit alleging that the constant scheduling and rescheduling of his execution when the state couldn’t obtain lethal injection chemicals violated his Eighth Amendment rights prohibiting cruel and unusual punishment, Idaho Reports reported.

Idaho Department of Correction declines to disclose name of drugs obtained for lethal injection or where they were acquired from

When asked whether the state was prepared to move forward with an execution by lethal injection or by firing squad, Idaho Department of Correction Director Josh Tewalt and Ray both told the Sun the state has obtained the chemicals for a lethal injection.

Tewalt said he also filed an affidavit with the courts shortly after the Oct. 12 death warrant was issued certifying that lethal injection was available for the state.

Idaho Department of Correction officials declined to disclose the specific chemicals they obtained, as well as how and where they obtained the chemicals, citing ongoing litigation and state laws providing confidentiality in the process. Officials also declined to discuss how much the state paid for the chemicals.

During the 2022 session, the Idaho Legislature passed House Bill 658, which gives the suppliers and manufacturers of lethal injection chemicals confidentiality. That law, which Gov. Brad Little signed in March 2022, is also written so that it also prevents confidential information from being disclosed in court filings, the Sun previously reported.

The American Civil Liberties Union and Idaho Press Club opposed House Bill 658 in 2022, arguing the public has a right to information about executions carried out by the state and paid for by taxpayers.

Tewalt said the Idaho Department of Correction will not rush an execution now that the state has obtained lethal injection chemicals and state law also now allows for the use of firing squad as an alternative method of execution if lethal injection chemicals are unavailable.

“We will not move forward unless we can do it in a way that is dignified,” Tewalt said in a telephone interview Wednesday. “We are committed to carrying it out with integrity, dignity and respect for everyone involved.”

Idaho state officials said fear of public backlash hampered ability to obtain chemicals
Physicians cannot prescribe the chemicals used in lethal injections, and the U.S. Food and Drug Administration does not regulate those chemicals.

In each of the past two legislative sessions, correction officials and other state leaders told legislators that they have been unable to obtain lethal injection chemicals.

In February 2022, Tewalt told members of the Idaho Legislature’s House Judiciary, Rules and Administration Committee that the state was unable to administer an execution because officials could not obtain the chemicals for a lethal injection.

“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 during the Feb. 17, 2022, hearing. “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.”

Then, in March 2023, Deputy Attorney General LaMont Anderson said companies and suppliers wouldn’t provide the chemicals because of fear of negative publicity. Anderson said the state used pentobarbital in the 2012 execution of Richard Leavitt, who was the most recent person to receive the death penalty in Idaho. Anderson told legislators in 2023 that the state believes pentobarbital is a viable means to carry out an execution, but state officials had been unable to obtain it.

Correction officials this week declined to specify for the Sun whether pentobarbital is the chemical the state has obtained to administer a lethal injection.

With much of the process surrounding lethal injection chemicals covered by confidentiality, journalists, transparency advocates and death penalty opponents have sought out public records and legal filings to piece together information about the process.

Idaho Department of Correction officials strongly deny a frequently reported allegation from a March 2020 lawsuit filed by Pizzuto’s attorneys that alleged Tewalt and former Idaho Department of Correction Director Kevin Kempf obtained chemicals for a 2012 lethal injection in a meeting that went down in a Walmart parking lot.

Ray called the Walmart allegations absurd and false.

“As the state prepares for another execution, we know there will be a rehashing of the previous coverage of this topic,” the Idaho Department of Correction wrote in a statement released Wednesday afternoon. “Some of it will surely include a repetition of certain absurd and false allegations that were intended to shock and mislead, like the allegation that the chemicals used in prior executions were bought in a Walmart parking lot.”

Department officials deny that allegation,” the Idaho Department of Correction statement continued. “The chemicals were procured in accordance with state and federal laws.”

Idaho Department of Correction officials preparing for execution

While the executions of Pizzuto and Creech are on hold following Pizzuto’s lawsuit and Creech’s commutation hearing, state officials are preparing to carry out an execution now that officials have obtained the chemicals for lethal injection.

In an Oct. 13 letter to all Idaho Department of Correction employees, Tewalt told the staff that none of the staff will be forced to participate in an execution process. Tewalt said everyone has a choice to opt out without repercussions.

Tewalt also said the magnitude and gravity of the death penalty warrants extra scrutiny and the process and procedures will be in the public eye.

“We will not tolerate behavior that reflects poorly on this agency, dishonors the

seriousness of the moment, or disrespects the condemned, victims, or anyone affected by this process,” Tewalt wrote. “Please be mindful how your words and actions — at work and away — can reflect on your peers and the difficult responsibility with which we’ve been tasked.”

“Being respectful throughout this process extends to respecting views that may differ from your own,” Tewalt added. “This is a highly charged issue about which people can have deeply held opinions or beliefs.”

The state of Idaho has eight inmates on death row – seven men and one woman, according to the Idaho Department of Correction. In addition to Pizzuto and Creech, Idaho’s death row inmates include Azad Abdullah, Timothy A. Dunlap, James Hairston, Erick Hall, Jonathan Daniel Renfro and Robin Row. Row is incarcerated at the Pocatello Women’s Correctional Center, while the other inmates are housed at the Idaho Maximum Security Institution in Kuna.

FEATURED IMAGE: Seven of Idaho’s eight death row inmates are Incarcerated at Idaho Maximum Security Institution located south of Boise. (Courtesy of Idaho Department of Correction)