Idaho Court Dismisses Longest-Serving Death Row Prisoner’s Post-Conviction Claim Against a Second Execution Attempt

On September 5, 2024, Idaho’s Fourth Judicial District Court dismissed death-sentenced prisoner Thomas Creech’s post-conviction claim, which sought to prevent a second execution attempt on the grounds that it would violate the Fifth Amendment’s double jeopardy clause, Eighth Amendment’s prohibition against cruel and unusual punishment, and equivalent state constitutional provisions. The state’s first attempt to execute Mr. Creech on February 28, 2024 was halted because correctional staff failed to set intravenous lines after an hour and eight attempts. 

“It would constitute unnecessary and wanton infliction of pain on Mr. Creech to attempt to execute him by any method after subjecting him to the psychological torment of the botched execution,” attorneys for Mr. Creech, who is now 74, wrote. “Such an attempt would also represent torture and a lingering death.” 

In granting the prosecution’s request for summary dismissal, Fourth Judicial District Judge Jason Scott explained in his decision that a second execution attempt would not violate Mr. Creech’s Fifth Amendment right against double jeopardy “[b]ecause a second attempt to carry out his death sentence wouldn’t subject him to more punishment than the legislature authorized for his crime,” nor would it violate his Eighth Amendment right against cruel and unusual punishment. 

“The Court doesn’t doubt that enduring one execution attempt and facing another has traumatized Creech. Despite his heinous crimes, Creech is a human being whose suffering is worthy of consideration,” wrote Fourth Judicial District Judge Jason Scott. Citing the decision in Broom v. Shoop (2020), Judge Scott agreed that “for better or worse” the precedent established in Francis v. Resweber (1947), which did not find a second execution attempt following the failed electrocution of a Louisiana death-sentenced prisoner to be cruel and unusual punishment, was the “law of the land.”  

Judge Scott then examined Mr. Creech’s claim that a second execution attempt would be cruel and unusual punishment through the two routes outlined in Broom. He first concluded that the state “didn’t intentionally or maliciously inflict unnecessary pain during the failed execution attempt.” Second, he explained that even if a second lethal injection execution were to be deemed cruel and unusual, that would not prohibit the state from carrying out an execution, but would require them to use a different method, like firing squad, outlined by state law. “Put differently, Creech’s death sentence itself can’t be impugned as a cruel and unusual punishment and therefore isn’t invalid, even if a method of carrying it out might be impugnable as such,” he wrote. Finally, Judge Scott concluded that since “[n]othing about the failed execution attempt renders Creech’s underlying death sentence unreliable or invalid,” this claim against a second execution attempt amounts “to a mere challenge to a proposed method of execution,” which is not litigable in post-conviction action, which serves as “a vehicle for attacking the validity of a conviction or sentence.”  

Although Judge Scott dismissed the claim, he proposed an alternate avenue under Idaho’s Uniform Declaratory Judgement Act for Mr. Creech to litigate a claim that a second execution attempt constitutes cruel and unusual punishment. “Consequently, while this post-conviction action isn’t a proper vehicle for determining whether a second attempt at executing Creech by lethal injection would be a cruel and unusual punishment, that question is reachable in an action of another kind,” he wrote. 

If Mr. Creech’s February 28 execution had been successfully carried out, it would have been Idaho’s first execution in 12 years. The state currently has no scheduled executions; however, the Idaho Department of Corrections (IDOC) recently purchased three doses of pentobarbital for $100,000 following the death-sentence given to Chad Daybell on June 1, 2024.