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Idaho buys another round of lethal injection drugs. Could next execution happen soon?

Rev. Mike Hollomon of Caldwell United Methodist and Emmett United Methodist prays with protesters against the death penalty outside of the Idaho Maximum Security Institution south of Boise on Feb. 28 during prisoner Thomas Creech’s attempted execution.  (Sarah A. Miller/Idaho Statesman)
By Kevin Fixler Idaho Statesman

BOISE – Idaho’s prison system appears to be advancing toward another lethal injection attempt following extensive national scrutiny three months ago, when prison officials called off the execution of an elderly prisoner when they could not find a suitable vein for an IV.

The Idaho Department of Correction has purchased three more doses of the powerful sedative pentobarbital to carry out a lethal injection, according to public records obtained by the Idaho Statesman. The cost was $100,000 – double what the agency paid in October for the same kind and amount of lethal chemicals.

Earlier this year, IDOC was unable to execute prisoner Thomas Creech, 73 – what his attorneys have labeled a botched attempt. Creech has been incarcerated for almost 50 years after five murder convictions, including three Idaho victims, most recently a fellow maximum security prisoner who he bludgeoned to death in 1981.

“Tom is still struggling with severe mental health trauma due to the botched execution,” Deborah A. Czuba, Creech’s attorney with the nonprofit Federal Defender Services of Idaho, said in a statement to the Statesman. “We would hope that the state will seriously consider the ramifications of going forward with a second attempt at execution.”

State prison leadership is exploring changes to lethal injection protocols in the wake of their failed attempt in February to execute Creech, who is one of eight prisoners on Idaho’s death row.

Whether Creech, the state’s longest-serving death row prisoner, will be served with another death warrant is unclear. Idaho has over the past three years made a concerted push to end the lives of him and the state’s second-longest-serving member on death row, and found itself unable to do so.

After IDOC officials stopped Creech’s execution, the prisoner’s death warrant was allowed to expire and he was returned to his cell. He remains there today.

“We don’t have an idea of time frames or next steps at this point,” IDOC Director Josh Tewalt said at a news conference following his decision to halt the execution. “Those are things that we will be discussing in the days ahead. Once the state has determined the next course of action, we’ll certainly make those actions known in the appropriate venue.”

Should prison officials succeed in their effort to deploy the lethal injection drugs, it would represent the state’s first execution in a dozen years.

IDOC policies and procedures under review

Since February’s failed execution, state officials have stayed tight-lipped about Creech’s situation. The state prison system deferred to the Office of the Attorney General and the Ada County Prosecutor’s Office for an update on Creech, including the possibility of another death warrant. Idaho Attorney General Raúl Labrador and Ada County Prosecutor Jan Bennetts, who is up for re-election, attended Creech’s planned lethal injection.

The Prosecutor’s Office declined to comment. The attorney general’s office did not respond to several requests for comment from the Statesman.

Before serving Creech a death warrant, the state issued three of them dating to May 2021 to prisoner Gerald Pizzuto, 68, but was forced to postpone his execution each time. One of those execution dates was nixed when IDOC couldn’t obtain execution drugs, which have been increasingly difficult to acquire. Pizzuto was convicted of a double-murder in 1985 an hour north of McCall in Idaho County and also later convicted of two prior murders in Seattle.

The prison system continues to make progress on trying to avoid a repeat of what happened with Creech while maintaining lethal injection as Idaho’s preferred execution method.

“A review of our policies and procedures, in consultation with our medical team, is underway and nearing completion,” IDOC spokesperson Sanda Kuzeta-Cerimagic said in an email to the Statesman. “There is a legal process that needs to play out, but our efforts are oriented toward being ready to carry out the sentence of death in a professional, respectful and dignified manner when ordered to do so.”

Shield law limits information about drug supplier

An hour into Creech’s scheduled lethal injection, prison officials suspended the execution – a first in state history. The decision has inspired renewed efforts in court to drop his sentence to life in prison. Those include new legal claims of cruel and unusual punishment over the eight times the execution team tried unsuccessfully to establish an IV in Creech’s body to administer the pentobarbital.

For Creech, prison officials prepared two of the three doses of the lethal chemical they had on hand as the primary and a reserve. The two doses designated for Creech were unusable after the failed attempt, Tewalt said at the time, which cost taxpayers about $33,000 and left just one dose remaining for possible use.

Tewalt acknowledged the state would need more pentobarbital to pursue any future lethal injections and said he was confident they could find it when the time came. In 2022, Idaho passed a law that allows officials to shield any identifying information for sources of execution drugs from the public.

“I will speak about our supplier as often as I always speak about our supplier, and that’s to say that I won’t speak about our supplier,” Tewalt said at the February news conference.

Last year, Idaho passed a law that made a firing squad the state’s backup method of execution when lethal injection drugs are unavailable, providing up to $750,000 for design and construction. IDOC has not renovated its execution chamber at the maximum security prison to permit a firing squad, partly because contractors have refused to work on an execution-related project, Tewalt said.

Labrador, who co-authored the firing squad death penalty law, told Idaho Public Television last year that he did not believe the backup execution method would be needed within the next year.

“Now that we have this other option, I think it’s going to be much easier for the state to receive what’s necessary for lethal injection,” he said. “But what we should never allow is these activist groups to get in the way of us enforcing the laws in the state of Idaho.”

Latest drug purchase order lacks date

After IDOC stopped Creech’s execution on Feb. 28, the state bought the new round of pentobarbital. Idaho in the past six months paid $150,000 for 30 grams of lethal injection drugs – or what amounts to six doses, according to state prison protocols. For Idaho’s past two executions, in 2011 and 2012, the state paid a total of about $25,000 for the pentobarbital used in those lethal injections.

The daily cost to house a prisoner on Idaho’s death row is about $100 a day, or roughly $36,500 per year, the Statesman previously reported. At that rate, the cost of execution drugs is equivalent to keeping Creech and Pizzuto both imprisoned for another two years, when they may die of natural causes. Both Creech and Pizzuto have serious health issues, with Pizzuto receiving hospice treatment for more than three years, according to his attorneys, also with the Federal Defender Services of Idaho.

Over recent years, the execution drug costs have become easier to obtain from IDOC after the agency lost a long legal battle to disclose the public records. But IDOC has continued to withhold the purchase dates.

The date was redacted from the state prison’s purchase order for pentobarbital last year, which IDOC released to the Statesman about a month after the agency stated it had secured the execution drugs for the first time in years, when it issued Creech’s October death warrant. A purchase order for the latest drug acquisition that IDOC provided to the Statesman also lacked a date, though it was a response to a public records request for all documents through the end of April.

Pizzuto’s attorneys in December filed a demand in U.S. District Court for the drug purchase date and other information about the source of the drug when they challenged the grounds of his execution by lethal injection. They argued that these details withheld by IDOC, which is represented by the attorney general’s office, do not violate the state’s shield law and should be released. The Statesman’s separate requests to IDOC for the redacted date have been denied.

In March, U.S. District Judge B. Lynn Winmill for the District of Idaho agreed with Pizzuto’s attorneys. His ruling ordered the state to give up the additional information, including the first execution drug purchase date.

IDOC, through its attorneys, appealed the decision to the 9th U.S. Circuit Court of Appeals. Oral arguments are scheduled for late September in San Francisco.

Debate over Creech as witness for Pizzuto

Pizzuto’s legal defense has in the meantime requested that the state be barred from a second attempt at executing Creech. They argued that Creech is now a material witness for proving Pizzuto’s claims about Idaho’s inability to avoid violating his constitutional rights during his own potential lethal injection.

“If the defendants are permitted to destroy Mr. Pizzuto’s opportunity to present this court with the testimony of Mr. Creech by executing him, Mr. Pizzuto faces irreparable harm,” Pizzuto’s attorneys wrote. “Without Mr. Creech’s testimony, the defendants can simply assert, as they previously have, that the execution team will make no mistakes during Mr. Pizzuto’s execution.”

The attorney general’s office opposed the request. It said that Pizzuto’s attorneys can preserve any testimony Creech might offer through other means, including a deposition, and that granting the motion equates to inappropriately issuing a stay of execution for Creech.

“Pizzuto claims Creech is an instrumental witness to the conduct of IDOC’s medical team. Yet Creech has no expertise regarding IV catheter insertion,” the attorney general’s office wrote.

“Pizzuto’s motion to preserve evidence should be denied.”

A response from Pizzuto’s attorneys is due next week before Winmill issues his decision.