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.”

(Editorial: State needs to come clean about lethal injec­tion drugs, Idaho Press, January 31, 2019; Brian Myrick, Former IDOC pur­chas­ing agent describes unusu­al finan­cial prac­tices relat­ed to exe­cu­tions, Idaho Press, February 1, 2019; Rebecca Boone, Witness: Prison offi­cials kept mis­lead­ing finan­cial books, Associated Press, February 1, 2019; Rebecca Boone, Judge Orders Partial Release of Idaho Lethal Injection Docs, Associated Press, January 30, 2019; Rebecca Boone, From hand­writ­ing to hair­styl­ists, here’s why Idaho heav­i­ly redact­ed lethal injec­tion info, Associated Press, January 29, 2019; Rebecca Boone, ​‘IDOC is rely­ing on spec­u­la­tion and fear’: Trial begins over effort to get Idaho exe­cu­tion-drug records, Associated Press, January 28, 2019.) See Secrecy. Read the Death Penalty Information Center’s report Behind the Curtain: Secrecy and the Death Penalty in the United States.

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