Arrow-right Camera
The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Idaho bill to extend death penalty unconstitutional, aims for US Supreme Court review

The Idaho State Capitol building is shown Jan. 11 in Boise.  (Otto Kitsinger/For the Idaho Capital Sun)
By Kevin Fixler Idaho Statesman

The Idaho House overwhelmingly passed a bill that would allow the death penalty for anyone convicted of certain sex crimes against preteen children Tuesday, even as its sponsor acknowledged that such a law would be unconstitutional.

House Bill 515 is designed to challenge decades of U.S. Supreme Court precedent that limited death sentences to defendants who commit murder, said Rep. Bruce Skaug, R-Nampa, who co-sponsored the bill with Rep. Josh Tanner, R-Eagle. With the current supermajority of conservative-leaning justices on the nation’s highest court, the hope is that the U.S. Supreme Court will review the Idaho bill if it becomes law and issue a decision that expands the eligibility for the death penalty.

“There is a deep, dark, dark side in our culture, and it’s our job to protect the children,” Skaug said Tuesday on the House floor. “There are times when things are so wicked that retribution is appropriate.”

The House approved the bill in a 56-12 vote, with two Republicans joining 10 Democrats in opposition. The bill heads to the Senate for committee review.

Under the proposed law, any person found guilty of lewd or lascivious acts against a child under the age of 12 would be punishable up to death if a jury finds that the defendant engaged in aggravating circumstances. Idaho defines lewd or lascivious conduct to include, but not limited to, any combination of genital, oral, anal or manual contact.

The U.S. Supreme Court in 2008 ruled that the Eighth Amendment of the U.S. Constitution prohibits death sentences for the rape of a child under 12 years old when the victim survived. That decision doubled down on a landmark decision in 1977 that found that a death sentence was “grossly disproportionate and excessive punishment” for the rape of an adult whose life was not also taken.

The 1977 case, Coker v. Georgia, was decided by a 7-2 vote among the justices, while the 2008 ruling in Kennedy v. Louisiana came in a 5-4 decision. Three of those justices who dissented in 2008, including Chief Justice John Roberts, remain on the court today along with three conservative and three liberal justices.

“I believe that was a wrong decision that took away our state’s right to decide what to do in the most heinous crimes of our community in our state,” said Skaug, a personal injury attorney. “I think there will be a very different decision with our present Supreme Court, but that would require all of you to stand up today and say, ‘We’re willing to take that fight on.’ ”

‘Idaho needs to be like Florida’

Sentencing a person to death for non-fatal sexual offenses against a child is “flatly unconstitutional” under existing interpretations of the Eighth Amendment, which bars cruel and unusual punishment, said Robert Dunham, a Philadelphia-based attorney with more than 30 years of experience studying the death penalty. Conservative lawmakers across the U.S. are beginning to promulgate such bills in a direct call for the U.S. Supreme Court to overturn its past rulings, he said.

“That is what the legislators are banking on,” Dunham said in a phone interview with the Idaho Statesman. “It is part of the efforts that we are seeing around the country across a wide range of civil liberties and constitutional rights of legislators … seeking to get one of the most conservative courts in American history to go along with them for that ride.”

The Idaho bill mirrors a law that took effect in Florida last year, when the governor sought to overturn the U.S. Supreme Court’s prior precedent. The first defendant to face the prospect of the new law reached a plea deal in exchange for life in prison without the chance of parole.

“Idaho needs to be like Florida and lead out in this and go, ‘We’re here to protect these kids,’ ” Tanner said Tuesday from the House floor. “At some point in time, we have to be able to say, ‘No, enough is enough,’ with … the most severe ones.”

The American Civil Liberties of Idaho, which opposes the death penalty, also opposes the bill.

“We think the Legislature has a duty and responsibility to uphold the law and serve the people that is constitutional instead of attacking people’s constitutional rights,” Rebecca De León, spokesperson for the ACLU of Idaho, told the Statesman in a phone interview. “This is a very irresponsible use of taxpayer funding.”

Cost studies from Idaho’s neighboring states have shown that pursuit of a death sentence on average costs taxpayers upward of $1 million more than when prosecutors instead sought life imprisonment for a defendant. The Idaho Legislature’s Office of Performance Evaluations failed to reach a conclusion in a similar study in 2014 because of a lack of necessary data, while acknowledging that it “would likely not result in anything different than what we already know from national and other states research,” the director wrote.

Rep. Chris Mathias, D-Boise, argued Tuesday during floor debate that the bill would actually lessen the punishment for those who prey on children because they would be placed in protected isolation on death row rather than face peers in the prison’s general population who don’t take crimes against kids lightly – all at taxpayer cost while they work through their lengthy appeals against being executed.

“We’re going to extend your life by some years while you go through the million-dollar appeals process … all the way to the (U.S.) Supreme Court in hopes that maybe the law will be overturned,” Mathias said. “And we are going to relieve the worst people in our society of the burden that they should carry for the rest of their life. Capital punishment, yes, is a serious punishment, but in this particular case it’s having the opposite effect of what we intend to do, which is to really punish the people who are doing this.”

Idaho AG Raúl Labrador refuses questions

Rep. Stephanie Jo Mickelsen, R-Idaho Falls, was one of the two House Republicans to vote against the bill. She also questioned the use of tax dollars for what Skaug described as a protracted legal battle just to create a path for the proposed law to get to the U.S. Supreme Court.

“I don’t doubt the heinousness of these crimes, nor do I discount the suffering of these children one bit,” Mickelsen said Tuesday. “But I think our money would be better spent, as well as our time, waiting to see what the U.S. Supreme Court is going to rule in these cases.”

Tanner said he didn’t have an estimate for the potential costs associated with the bill. Skaug said he wasn’t concerned about the legal fees, and that either the Legislature would dip into its “pretty large” coffer to hire specialized attorneys to take up the case, or the attorney general’s office would handle it.

“I believe this is worth the fight,” Skaug said. “Tell the victims you don’t think this is financially in their best interest.”

Idaho law requires that the attorney general provide a written legal opinion on any question of law when requested by any member of the Idaho Legislature, the governor and all other statewide elected officeholders. It is unclear whether the bill’s co-sponsors – or anyone else entitled to ask – sought such an opinion on the bill from Attorney General Raúl Labrador.

Labrador’s office refused to say whether he was involved in any way in the formation of the bill, whether he has provided anyone with his legal opinion of it, or what the potential risks may be for Idaho in approving a law that its own sponsor has acknowledged is unconstitutional. “The Office of the Attorney General does not have a comment for the Idaho Statesman on these issues,” Labrador’s spokesperson Dan Estes said by email following the bill’s House passage.

Skaug declined a request for an interview Monday but said in a text message that the attorney general’s office “had no input” on the bill or its drafting. Labrador, who previously worked under Skaug at his private law practice, and his former employer teamed last year to co-author a bill signed into law to restore a firing squad as the state’s backup method of execution.