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Judge says Idaho gov can’t veto clemency for condemned man

FILE - This Oct. 20, 2011, file photo, shows the execution chamber at the Idaho Maximum Security Institution in Boise, Idaho. An Idaho judge ruled that Idaho's governor doesn't have the power to veto a clemency recommendation by the state's parole board for a terminally ill man who was expected to be executed this year. The ruling from 2nd District Judge Jay Gaskill, on Friday, Feb. 4, 2022, said Gerald Pizzuto Jr.'s death sentence is illegal, and so the court will not issue a death warrant, a required step before an execution may occur. Gov. Brad Little's office vowed to appeal. Pizzuto Jr. was sentenced to death following his murder conviction for the 1985 beating deaths of Berta and Delbert Herndon at a remote Idaho County cabin. (Jessie L. Bonner)
By Rebecca Boone Associated Press
FILE - This Oct. 20, 2011, file photo, shows the execution chamber at the Idaho Maximum Security Institution in Boise, Idaho. An Idaho judge ruled that Idaho's governor doesn't have the power to veto a clemency recommendation by the state's parole board for a terminally ill man who was expected to be executed this year. The ruling from 2nd District Judge Jay Gaskill, on Friday, Feb. 4, 2022, said Gerald Pizzuto Jr.'s death sentence is illegal, and so the court will not issue a death warrant, a required step before an execution may occur. Gov. Brad Little's office vowed to appeal. Pizzuto Jr. was sentenced to death following his murder conviction for the 1985 beating deaths of Berta and Delbert Herndon at a remote Idaho County cabin. (Jessie L. Bonner)

BOISE – A judge says Idaho’s governor doesn’t have the power to veto a clemency recommendation by the state’s parole board for a terminally ill man who was expected to be executed this year.

The ruling from 2nd District Judge Jay Gaskill on Friday says Gerald Pizzuto Jr.’s death sentence is illegal, and so the court won’t issue a death warrant – a required document before an execution can occur. Gov. Brad Little’s office vowed to appeal.

Pizzuto, 66, has been on death row for more than three decades after being convicted for the July 1985 slayings of two gold prospectors at a cabin north of McCall. He was scheduled to be executed by lethal injection last year, but after a clemency hearing the Idaho Commission of Pardons and Parole voted 4-3 to recommended that Pizzuto’s sentence be changed to life in prison. The board cited Pizzuto’s poor health – he has terminal cancer and decreased intellectual function – and said commutation would be an act of mercy.

Little, however, rejected the recommendation and said he wouldn’t commute Pizzuto’s sentence. Little noted the man committed the Idaho slayings shortly after being released from prison in Michigan where he had been convicted of rape.

Pizzuto’s attorneys with the Federal Defender Services of Idaho went to court, with attorney Jonah Horwitz arguing last month that while Idaho’s Constitution gives the governor the power to grant temporary reprieves from execution, it stops far short of allowing the governor to override the parole board’s commutation recommendation.

But attorneys for the state said a phrase added by amendment in 1986 to the relevant section of the constitution, “only as provided by statute,” meant that the Legislature could modify the way commutation and parole powers are carried out. Deputy attorney general LaMont Anderson said the Legislature had done exactly that in a state law that said the parole board could recommend commutation, but the governor must approve.

In Friday’s ruling, Gaskill sided with Pizzuto.

“If the drafters intended to allow the governor to have the power of commutation, which is greater than the power to grant respites and reprieves, the drafters could have specifically stated this,” Gaskill said, pointing out that the constitutions of several other states, including Texas, Oklahoma, Arizona and Pennsylvania, do explicitly give commutation power to the governor.

Gaskill’s ruling acknowledged that the case would have additional appeals and likely go back before the Idaho Supreme Court.

Still, Gaskill said his court would “err on the side of caution regarding which entity has the ultimate say in whether a sentence of death should be commuted.”