Hospice-Bound Death-Row Prisoner Challenges Idaho Governor’s Authority to Reject Pardons Commission Commutation Decision

A hos­pice-bound death-row pris­on­er has filed a motion in Idaho state court chal­leng­ing the author­i­ty of Governor Brad Little to reject a par­dons com­mis­sion rec­om­men­da­tion that his death sen­tence be com­mut­ed to life with­out pos­si­bil­i­ty of parole. 

Gerald Pizzuto, Jr., who was sen­tenced to death in 1986 for the killings of two gold prospec­tors, suf­fers from advanced blad­der can­cer, chron­ic heart and coro­nary artery dis­ease, coro­nary obstruc­tive pul­monary dis­ease (COPD), and Type 2 dia­betes with relat­ed nerve dam­age to his legs and feet. He has been in hos­pice care since 2019, when doc­tors esti­mat­ed his life expectan­cy at less than a year.

On December 30, 2021, the Idaho Commission of Pardons and Parole vot­ed 4 – 3 to rec­om­mend that Pizzuto’s death sen­tences be com­mut­ed to life with­out parole. ​“This rec­om­men­da­tion is one of mer­cy due to Mr. Pizzuto’s cur­rent med­ical con­di­tion and evi­dence of decreased intel­lec­tu­al func­tion­ing,” the major­i­ty wrote. ​“Mr. Pizzuto has served 35 years in prison and his phys­i­cal con­di­tion, as well as the fact that he will nev­er be released from prison, leaves him as very lit­tle threat to others.”

Governor Little imme­di­ate­ly issued a let­ter reject­ing the rec­om­men­da­tion, appar­ent­ly paving the way for the state to issue a fourth war­rant for Pizzuto’s exe­cu­tion. However, on January 3, 2022, Pizzuto’s lawyers from the Idaho Federal Defender’s office asked the Idaho County Judicial District Court to refrain from issu­ing a new death war­rant, say­ing that the par­dons com­mis­sion rec­om­men­da­tion con­sti­tut­ed a final deci­sion under the Idaho Constitution. 

“Article IV, Section 7 of the Idaho Constitution places the com­mu­ta­tion pow­er exclu­sive­ly in the hands of the Commission,” coun­sel wrote, and lim­its the governor’s clemen­cy author­i­ty to deci­sions involv­ing ​“respites or reprieves.” In death penal­ty cas­es, that pow­er is lim­it­ed to ​“one nar­row func­tion: to post­pone an exe­cu­tion,” the motion argues. ​“Mr. Pizzuto’s sen­tences were com­mut­ed as a mat­ter of con­sti­tu­tion­al law as soon as a major­i­ty of the Commission released its deci­sion to reduce them to life. The Idaho Constitution gave the Governor no say in the matter.”

The Clemency Proceedings

On April 9, 2021, Pizzuto’s lawyers filed a clemen­cy peti­tion pre­sent­ing evi­dence depict­ing his hor­rif­ic child­hood, his ter­mi­nal med­ical con­di­tion, and that he may be intel­lec­tu­al­ly dis­abled. His con­vic­tion and death sen­tence were also taint­ed by a secret deal bro­kered between his pros­e­cu­tor, his tri­al judge, and the co-defendant’s coun­sel in which the co-defen­dant tes­ti­fied against Pizzuto in exchange for a lenient sen­tence. Under Idaho law at the time of tri­al, the judge served as the sen­tencer and, with­out dis­clos­ing his involve­ment in the deal, sen­tenced Pizzuto to death.

On May 6, 2021, while the peti­tion was pend­ing, Idaho issued a death war­rant sched­ul­ing Pizzuto’s exe­cu­tion for June 2, 2021. However, the tri­al court stayed the exe­cu­tion on May 18, 2021, after the par­dons com­mis­sion grant­ed Pizzuto a clemen­cy hear­ing to be con­duct­ed dur­ing its November 2021 term. The deci­sion was just the sec­ond time the com­mis­sion had agreed to con­duct a clemen­cy hear­ing in a death penal­ty case since Idaho rein­stat­ed cap­i­tal pun­ish­ment in 1977.

At a November 30, 2021 hear­ing, the com­mis­sion heard tes­ti­mo­ny relat­ed to Pizzuto’s numer­ous med­ical prob­lems, his decreased men­tal func­tion­ing, and the hor­rif­ic abuse he suf­fered as a child. His clemen­cy coun­sel argued that he should be allowed to ​“die on God’s time.” One month lat­er, the com­mis­sion issued its 4 – 3 rec­om­men­da­tion that Pizzuto’s sen­tence be reduced to life in prison with­out the pos­si­bil­i­ty of parole. 

In reject­ing the rec­om­men­da­tion, Little wrote that “[t]he sever­i­ty of Pizzuto’s bru­tal, sense­less and indis­crim­i­nate killing spree strong­ly war­rants against com­mu­ta­tion.” The gov­er­nor ​“respect­ful­ly den[ied] the commission’s rec­om­men­da­tion so that the law­ful and just sen­tences for the mur­ders of Berta and Del (Herndon) can be ful­ly car­ried out as ordered by the court.”

Assistant fed­er­al defend­er Deborah Czuba released a state­ment for Pizzuto’s defense team respond­ing to the governor’s deci­sion. ​“We are dev­as­tat­ed and heart­bro­ken that the gov­er­nor, show­ing no mer­cy what­so­ev­er, so casu­al­ly and quick­ly reject­ed the commission’s well-rea­soned and thought­ful rec­om­men­da­tion that Mr. Pizzuto deserves clemen­cy. We had hoped the gov­er­nor would fol­low the lead of the com­mis­sion­ers, and com­mit Idaho to a high­er ide­al by spar­ing Mr. Pizzuto an unnec­es­sary exe­cu­tion based on his impend­ing nat­ur­al death from ter­mi­nal dis­ease and his dete­ri­o­rat­ing mind.” She went on to say, ​“Mr. Pizzuto’s team will con­tin­ue to pur­sue all oth­er avenues for pre­vent­ing the pure­ly vin­dic­tive and waste­ful exe­cu­tion of a ter­mi­nal­ly ill old man.”

The Legal Issue

Pizzuto’s coun­sel filed a motion in the tri­al court on January 3, 2022 seek­ing to pre­clude the court from issu­ing a new death war­rant, at least until the issue of the governor’s author­i­ty to ​“veto” a deci­sion of the com­mis­sion can be decid­ed. Counsel not­ed that both the com­mis­sion­ers, in fram­ing their deci­sion as a ​“rec­om­men­da­tion,” and the gov­er­nor in osten­si­bly deny­ing it, based their actions on an Idaho statute pro­vid­ing that, in cap­i­tal cas­es, the Commission’s clemen­cy ​“deter­mi­na­tion shall only con­sti­tute a rec­om­men­da­tion sub­ject to approval or dis­ap­proval by the” governor.

Noting that ​“a statute can­not stand if it con­tra­dicts the state con­sti­tu­tion,” Pizzuto’s lawyers argue that ​“giv[ing] the Governor a veto over the Commission’s judg­ment in a com­mu­ta­tion … runs afoul of Article IV, Section 7, and is there­fore con­sti­tu­tion­al­ly invalid. The Governor’s veto here was con­se­quent­ly unlaw­ful, and had no legal effect on the Commission’s deci­sion, which com­mut­ed Mr. Pizzuto’s death sen­tences under Section 7.”

Idaho has con­duct­ed just three exe­cu­tions since 1976. If Pizzuto is exe­cut­ed, he will be the first per­son put to death in the state since Richard Leavitt’s exe­cu­tion on June 12, 2012. Pizzuto is only the sec­ond Idaho death-row pris­on­er to receive a rec­om­men­da­tion for clemen­cy in the mod­ern era of the death penal­ty. The only oth­er per­son to receive such a rec­om­men­da­tion was Donald Paradis, who was grant­ed clemen­cy and later exonerated.

The Idaho Attorney General’s office had no com­ment on Pizzuto’s filing.