Idaho

Idaho

Judges in Idaho, Nebraska Order States to Release Execution-Related Records

Judges in Idaho and Nebraska have ordered prison officials to release execution-related records the states had sought to keep secret. Finding that the Idaho Department of Correction (IDOC) acted frivolously and in bad faith in its prior response to a public records request, a state court judge ruled on March 21 that officials at IDOC must release documents related to the state’s death-penalty and execution processes. In Nebraska, a federal district court judge ruled on March 15 that the state must provide information to lawyers representing Arkansas death-row prisoners relating to how Nebraska obtained the fentanyl used in executing Carey Dean Moore in August 2018.

In the Idaho lawsuit, Fourth District Judge Lynn Norton chastised IDOC for its bad faith in barely responding to a public records request for execution-related documents submitted by University of Idaho professor Aliza Cover. Judge Norton ruled that the Department must release documents that will include the state’s source of execution drugs it used in its last execution and ordered that IDOC pay court and attorney’s fees for Cover.

Cover had sought copies of receipts, purchase orders, and other information related to the drugs Idaho used in its last two executions in 2011 and 2012 and those it expects to use in future executions. The department disclosed only a copy of the state’s execution policy manual, claiming that the remaining documents were exempt from public review. Cover, who studies the death penalty and its application, sued. IDOC redacted dozens of items from execution records, including not only the names of prison staff who participated in executions, but their handwriting, and the names of people only tangentially involved in executions, such as clergy who counsel death-row prisoners and hairdressers who give prisoners their final haircuts. The state claimed, without evidence, that the redactions were necessary to protect those individuals from protest, harassment, or violence. Similar claims of threats against execution team members in other states have been found to be unsubstantiated. Idaho officials also withheld information on the source of execution drugs used in the past, claiming that suppliers would no longer provide the drugs if their identities were revealed.

Norton’s ruling will force the IDOC to release a receipt for lethal-injection drugs from a compounding pharmacy that were used in Richard Albert Leavitt’s 2012 execution, the most recent execution in Idaho. IDOC will be able to withhold information about the drugs from Paul Ezra Rhoades’s 2011 lethal-injection execution because the source may still be supplying drugs used in lethal injections.

In the Nebraska case, U.S. District Court Senior Judge Laurie Smith Camp gave the Nebraska Department of Correctional Services until April 12 to turn over documents detailing its efforts to obtain its execution drugs, but allowed the state to redact information concerning the identity of the pharmacy that supplied the drugs because the company had “made a business decision to decline any future sales of chemicals to any state, including Nebraska.” Arkansas prisoners who are challenging that state’s use of the drug midazolam in executions were seeking the information to meet the obligation imposed by the U.S. Supreme Court that they prove that an alternative drug was available. The court required Nebraska to disclose records related to how the state identified the pharmacy and persuaded it to supply fentanyl to Nebraska.

Many states attempt to shroud their execution processes and practices in secrecy. “When the state keeps secret basic information about the death penalty, the public cannot ensure that it is carried out humanely or constitutionally,” Cover said.

Execution Records Trial Reveals False Statements, Questionable Practices by Idaho Officials

Idaho officials deliberately misled the public about the costs and application of the state’s death penalty and prison officials’ questionable efforts at obtaining execution drugs, according to evidence presented in week-long court hearings on the state’s execution secrecy practices. Testimony from January 28 through February 1, 2019 in an open-records lawsuit against the Idaho Department of Corrections has revealed that Idaho paid $10,000 in cash to an undisclosed drug supplier, maintained a set of fraudulent financial records related to execution expenses, falsely denied having records documenting contacts with a disreputable drug supplier in India, and hid from the public information as mundane as the hairdressers who give prisoners their final haircuts. The lawsuit was brought by the ACLU of Idaho on behalf of University of Idaho law professor Aliza Cover (pictured) after the IDOC refused to turn over numerous execution-related records to her in response to a 2017 public records request.

Relying on Idaho’s Public Records Act, Cover had sought copies of receipts, purchase orders, and other information related to the drugs Idaho used in its last two executions in 2011 and 2012 and those it expects to use in future executions. The department disclosed only a copy of the state’s execution policy manual, but claimed the remaining documents were exempt from public scrutiny. Cover, who studies the death penalty and its application, sued, asking the court to order the records disclosed. Even then, IDOC resisted. In actions ACLU attorney Molly Kafka characterized as “relying on speculation and fear rather than data,” IDOC redacted dozens of items from execution records, including not only the names of prison staff who participated in executions, but their handwriting, and the names of people only tangentially involved in executions, such as clergy who counsel death-row prisoners and hairdressers who give prisoners their final haircuts. The state claimed, without evidence, that the redactions were necessary to protect those individuals from protest, harassment, or violence. Similar claims of threats against execution team members in other states have been found to be unsubstantiated. Idaho officials also withheld information on the source of execution drugs used in the past, claiming that suppliers would no longer provide the drugs if their identities were revealed. IDOC falsely told investigative reporter Chris McDaniel that records he had requested did not exist. In fact, records showed that Idaho had contact with Chris Harris—a drug supplier in India who had obtained drugs from a European pharmaceutical company for medical use in Africa and then misappropriated them instead for sale for executions in the United States.

Testimony at the trial also revealed that IDOC’s secrecy efforts extended to fraudulent recordkeeping practices. According to a former Idaho Department of Corrections employee, IDOC kept three sets of financial books because the department “did not want to show a tremendous amount of money being spent for the execution as well as for the anonymity for those involved in it.” When a person would ask the IDOC for execution-related data, the first set of books would be given out. A second set of books would be provided if the person persisted. “So, the first set would be a lower amount to not represent the total of what was being spent, and the second one had a little higher amount just to show due diligence — that there was work being done to capture all the amounts,” the official said. According to the official, “the third was the actual set of books that would actually represent the expenses.”

Testifying during the trial, Cover said: “If the public is not able to have this information about those issues, [it] cannot come to a decision on its moral view about the punishment that is occurring.” In closing statements Monday, February 4, 2019, one of her lawyers said: “[IDOC’s] argument at this point is crystal clear — this information is so important that we can’t release it, because it would change the way we do things.” An editorial by the Idaho Press urged the state to end the secrecy: “In the end, the state of Idaho needs to be transparent about the drugs it’s using for lethal injections and about where they’re getting those drugs. We see no exemption in the public records law for protecting a relationship with a drug provider.”

Courts in Indiana and Idaho Grapple With Challenges to Execution Secrecy

Courts in Idaho and Indiana are grappling with how to respond to legal challenges to lethal-injection secrecy laws after corrections officials in both states refused to release execution information requested under state public records laws. In both states, officials refused to provide details about execution drugs and their sources, saying that state law insulates the information from public disclosure. In Idaho, Judge Lynn Norton ordered the Department of Corrections to release information about the two most recent executions in response to a public records request filed last year by University of Idaho law professor Aliza Cover seeking information on the state's execution drug purchases, expiration dates and other related information for a project researching the effects of lethal-injection secrecy. Judge Norton ruled that state officials could redact the identities of individuals involved in the executions, including correctional staff members, doctors, and witnesses. Jeff Zmuda, Deputy Director of the Department of Corrections, had argued against public disclosure, saying it endangered public safety and repeating an unsubstantiated claim made by other states that releasing the source of execution drugs would subject the provider to harassment. Judge Norton rejected the state's arguments, finding that revealing the information would not threaten public safety even if execution drugs became unavailable as a result. She said: "If all lethal injection chemicals are unavailable when an execution is scheduled, then such unavailability would not cause an inmate's release from prison. Most states wait for different chemicals to become available while some have adopted alternative forms of execution such as firing squad or electric chair. The court is not aware of any who just release death row inmates into the community." A hearing was held on May 15 in a similar case in Indiana, in which attorney A. Katherine Toomey requested lethal-injection records from the Department of Corrections in 2014. Toomey won a summary judgment in 2016, but the state legislature responded by passing a retroactive secrecy law in 2017, inserting it into a 175-page budget bill after midnight on the final day of the legislative session. The state attorney general's office has claimed that revealing the identities of "individuals who are involved in crafting public policy as it relates to the death penalty ... could subject them to harassment, public shaming and even violence from those who oppose the death penalty." However, Peter Racher, who is representing Toomey in the dispute, said DOC officials indicated during depositions that no one had received threats regarding implementation of the death penalty. Racher called the state's efforts to block the disclosure of execution documents, "insult upon insult to anyone who cares about transparency in government and openness in representative government." If the documents are released, he said, "the Indiana public will know more about one of the most consequential areas of decision making that the state of Indiana engages in.

Idaho County Considers Leaving State Defense Fund As Way to Deter Capital Prosecutions

To deter future use of the death penalty in their county, the Blaine County, Idaho County Commissioners on January 2 voted to consider withdrawing from the state's Capital Crimes Defense Fund as a way to choke off state funding in capital prosecutions. “This is a way for our county to say we don’t support the death penalty, and that we don’t want the prosecutor seeking it in Blaine County,” said Commissioner Larry Schoen (pictured), who proposed the withdrawal. Two days later, however, the commissioners backtracked after learning that participation in the fund was a prerequisite for the county to be eligible to receive the services of the State Appellate Defender's office in a wide range of non-capital appeals. The commissioners had believed that, by requiring the county to absorb the entire cost of defending death penalty cases, pulling out of the fund would create a disincentive for local prosecutors to seek the death penalty. At a minimum, Schoen said, “the prosecutor would have to certainly be aware that [a capital prosecution] would be an enormous financial burden on the county.” Blaine County Prosecuting Attorney Jim Thomas, who has not sought the death penalty since assuming office in 2000, strongly opposed the proposal, saying that decisions to seek the death penalty should not be based on cost. “It’s probably the most important, weighty decision that I would make,” he said. “And to think that we would make it on the basis of finances, I think that’s probably what insulted me most, frankly.” After considering a letter from Thomas and reviewing the conditions of Blaine County's agreement with the appellate defender's office—under which the county would lose an estimated $22,000-$25,000 annually in state appellate assistance in non-capital felony cases if it withdrew from the Capital Crimes Defense Fund—the commissioners decided against withdrawing. “My underlying thoughts haven’t changed," Schoen said. “But at this point, there would likely be too many unintended consequences and negative implications involved with not participating.” As a result, he recommended that the county “continue participation in the Capital Crimes Defense Fund, though I hope we can pursue a legislative solution to decouple that from access to the state’s public defenders.” A 2014 study of death-penalty costs in Idaho by the Idaho Legislature’s Office of Performance Evaluations found that the State Appellate Public Defenders office spent 44 times more billable hours on the average death-penalty appeal than on cases in which a life sentence had been imposed. The study also concluded that, on average, capital trials took seven more months to reach a conclusion than non-capital cases. More than half of the 40 people sentenced to death in Idaho since 1977 have had their death sentences overturned on appeal and then received lesser sentences. In November, the commissioners in Ada County—the state’s largest county and the county that most aggressively seeks the death penalty—voted to leave the fund to reduce payments for capital defense services. The commissioners reconsidered that decision after realizing that withdrawal from the fund would make the county responsible for hundreds of thousands of dollars in appellate costs for non-capital cases.

At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness

Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."

COSTS: Idaho Study Finds Death Penalty Cases Are Rare, Lengthy, & Costly

A new, but limited, study of the costs of the death penalty in Idaho found that capital cases are more costly and take much more time to resolve than non-capital cases. One measure of death-penalty costs was reflected in the time spent by attorneys handling appeals. The State Appellate Public Defenders office spent about 44 times more time on a typical death penalty appeal than on a life sentence appeal (almost 8,000 hours per capital defendant compared to about 180 hours per non-death penalty defendant). Capital cases with trials took 20.5 months to reach a conclusion while non-capital cases with trials took 13.5 months. The study was commissioned by the Joint Legislative Oversight Committee and performed by the Office of Performance Evaluations.The study also noted how infrequently the death penalty was applied in Idaho: of the 251 defendants who were charged with first-degree murder since 1998, the death penalty was sought against 55 (22%) of them, and just 7 were sentenced to death. More than half of the 40 people sentenced to death since 1977 have received lesser sentences after their death sentences were overturned.

EXECUTIONS: The U.S. in Mid-Year 2012

In the first half of 2012, eight states carried out 23 executions. In the same period last year, there were 25 executions in 9 states. The annual number of executions has declined significantly from its peak in 1999, when 98 people were executed. There were 43 executions in 2011.  Sixteen of this year's executions (70%) have been in the South, with nearly half in just two states - Texas and Mississippi. Seventy-eight percent (78%) of cases resulting in executions this year involved a murder with a white victim, even though generally whites are victims of murder less than 50% of the time in the U.S. Inmates executed so far this year spent an average of just over 18 years on death row prior to execution.  According to the Bureau of Justice Statistics, the average time between sentencing and execution for those executed in 2010 was 15 years, the longest period for any single year.  States have continued to alter their execution protocols due to ongoing shortages of certain execution drugs. All executions in 2012 have been by lethal injection.  This year Arizona and Idaho joined Ohio and Washington in using a one-drug lethal injection procedure.  All executions this year have used pentobarbital, a drug not used in executions prior to December 2010.

Court Requires Greater Public Access for Viewing Executions

On June 8, the U.S. Court of Appeals for the Ninth Circuit ruled that witnesses should have full viewing-access to executions carried out in Idaho, siding with the Associated Press and other media outlets. Seventeen news organizations had argued that the state’s protocol was unconstitutionally restrictive because it prevented witnesses, including reporters acting as representatives of the public, from viewing executions until after catheters had been inserted into the veins of death row inmates. The court stated, "Nearly a decade ago, we held in the clearest possible terms that ‘the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber.’ . . . The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law." The ruling will immediately affect the execution of Richard Leavitt, who is facing lethal injection on June 12. Jeff Ray, a spokesperson for Idaho’s Department of Corrections said, "We, of course, respect the court's decision. We will take the necessary measures to assure that the execution continues as scheduled.”

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