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.