Idaho

Idaho

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.”

DPIC RESOURCES: New State Pages Now Available

DPIC is pleased to announce the completion of our State Information Pages for all 50 states and the District of Columbia.  These state profiles provide historical and current information on the death penalty for each state, including famous cases, past legislative actions, and links to key organizations and state officials.  For frequently updated information, such as execution totals, the size of death row, or the number of exonerations, see our State-by-State Database.  Readers are encouraged to send additional information, pictures, and links to organizations in their state.  You can reach the State Information Pages through the "State by State" button at the top of every page on our website or under the "Resources" tab in our main menu.

NEW RESOURCES: States Ranked by Executions Per Death Sentence

DPIC has updated its Executions Per Death Death Sentence page to reflect data through 2010.  This page lists states in order of the percentage of death sentences resulting in an execution since the death penalty was reinstated in 1976.  If every death sentence resulted in an execution, the state would be at 100%, or a rate of 1.00.  Using this ratio of executions per death sentence, the first five states are Virginia (.725), Texas (.498), Utah (.368), Missouri (.347), and Delaware (.311).  Of those states that have carried out at least one execution, the five states with the lowest rate of execution are Pennsylvania (.008), California (.015), Idaho (.025), Oregon (.028), and Tennessee (.035).  Four states with the death penalty during this time period had no executions: Kansas, New Hampshire, New Jersey, and New York.  The latter two have abandoned the death penalty.  Nationally, about 15% of death sentences have resulted in an execution (a rate of .150).  Another measure of state execution rates is executions per capita (population).  Under this standard, Oklahoma and Texas are the leading states.

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