Idaho Death-Sentenced Prisoners Challenge ​“Arbitrary” and ​“Capricious” Firing Squad Protocol

In March, the Idaho leg­is­la­ture passed a law exempt­ing exe­cu­tion pro­ce­dures from admin­is­tra­tive over­sight require­ments—seem­ing­ly designed to under­mine a pend­ing law­suit filed by death-sen­tenced pris­on­er Gerald Pizzuto. After the fir­ing squad took effect as Idaho’s pri­ma­ry exe­cu­tion method on July 1, Mr. Pizzuto, along­side fel­low pris­on­er Thomas Creech, again sued the state on July 6 for alleged administrative violations. 

Mr. Pizzuto ini­tial­ly sued the state in 2024 based on a lethal injec­tion pro­to­col adopt­ed in the wake of a botched exe­cu­tion attempt against Mr. Creech. While that law­suit was pend­ing, Idaho made sev­er­al major leg­isla­tive changes, includ­ing autho­riz­ing the fir­ing squad as its pri­ma­ry exe­cu­tion method in March 2025 (effec­tive July 1, 2026), and exempt­ing exe­cu­tion pro­ce­dures from Idaho’s Administrative Procedure Act (APA), which empow­ers state courts to review and block cer­tain gov­ern­ment actions, such as those imposed with­out notice or pub­lic input, as well as pol­i­cy changes that are ​“arbi­trary, capri­cious, or an abuse of dis­cre­tion.” Idaho law now holds that the cor­rec­tions direc­tor ​“shall deter­mine the pro­ce­dures to be used in any exe­cu­tion,” and the new amend­ment states that “[s]uch pro­ce­dures shall not be sub­ject to” the APA. 

On June 8, Idaho Department of Corrections (IDOC) Director Bree Derrick approved a new exe­cu­tion pro­to­col in advance of the fir­ing squad tak­ing effect. Idaho has nev­er con­duct­ed a fir­ing squad exe­cu­tion before, and only two oth­er states, Utah and South Carolina, have done so in the mod­ern era. The pro­to­col made head­lines for, among oth­er nov­el pro­vi­sions, seek­ing police offi­cers to vol­un­teer for the firing squad. 

In their new law­suit, Mr. Creech and Mr. Pizzuto argue that, while the law now pro­hibits admin­is­tra­tive review of exe­cu­tion pro­ce­dures, the APA still applies to ​“the Director’s deci­sion­mak­ing approv­ing” the pro­to­col, as well as ​“cer­tain of the Director’s poli­cies that con­cern sub­stan­tive qual­i­fi­ca­tions, stan­dards, require­ments, and rights” (empha­sis added). For exam­ple, they do not con­tend that instruc­tions for mov­ing a per­son into the exe­cu­tion cham­ber, secur­ing them to a gur­ney, or read­ing the death war­rant should have under­gone admin­is­tra­tive review — but they say that par­tic­i­pant qual­i­fi­ca­tions and ​“required con­tent of train­ings and rehearsals that take place before the exe­cu­tion,” which ​“do not con­cern the pro­ce­dur­al steps that take place dur­ing or with­in the exe­cu­tion itself,” are fair game. (They also note sep­a­rate­ly that they do not ​“con­cede the con­sti­tu­tion­al­i­ty” of the recent amendment.) 

Under this inter­pre­ta­tion, they say, IDOC Director Derrick vio­lat­ed the APA’s require­ments for pub­lic par­tic­i­pa­tion and rea­soned gov­er­nance. ​“Director Derrick’s pro­mul­ga­tion and approval…took place in secret, with­out any input from the gen­er­al pub­lic,” they write, and the ​“direc­tor has not pro­vid­ed any expla­na­tion for her choic­es, dis­closed the facts or infor­ma­tion con­sid­ered when doing so, or offered the barest of jus­ti­fi­ca­tions.” They argue that her action approv­ing the pro­to­col, and the pro­to­col itself, are ​“arbi­trary, capri­cious, and an abuse of dis­cre­tion,” and ​“in excess of…statutory author­i­ty,” prej­u­dic­ing the pris­on­ers’ ​“sub­stan­tial rights,” includ­ing ​“their rights to mean­ing­ful­ly chal­lenge the poli­cies and pro­ce­dures that will be used to car­ry out their exe­cu­tions.”¹

Close Look: Legal Claims

Mr. Pizzuto and Mr. Creech then sys­tem­at­i­cal­ly address var­i­ous aspects of the exe­cu­tion pro­to­col, argu­ing that each ​“fails to con­sid­er impor­tant fac­tors, is irra­tional or unrea­son­able, and is sub­ject to mis­use or abuse by IDOC.” 

One of their core cri­tiques is that the fir­ing squad train­ing and pro­fi­cien­cy test­ing ​“does not sub­stan­tial­ly repli­cate con­di­tions sim­i­lar to those present dur­ing an exe­cu­tion.” For instance, the plain­tiffs observe, the pro­to­col ​“does not require pro­fi­cien­cy in a mul­ti-shoot­er envi­ron­ment,” nor in ​“deter­min­ing when a tar­get has moved or shift­ed and adjust­ing aim accord­ing­ly,” ​“back-to-back vol­leys of fire,” ​“load­ing and reload­ing mag­a­zines,” or ​“fir­ing under con­di­tions that may include loud noises.” 

The plain­tiffs also point out unex­plained incon­sis­ten­cies across the poli­cies. For instance, the fir­ing squad requires accu­ra­cy test­ing and no dis­ci­pli­nary infrac­tions in the past year, but the lethal injec­tion team requires nei­ther. Conversely, the lethal injec­tion team requires CPR cer­ti­fi­ca­tion and a pre-exe­cu­tion check of med­ical sup­plies, while the fir­ing squad does not. The lethal injec­tion pol­i­cy con­firms that sound is broad­cast to wit­ness­es dur­ing the exe­cu­tion, while the fir­ing squad pol­i­cy includes no such pro­vi­sion; in the past, audio has proven essen­tial for media and oth­er wit­ness­es to doc­u­ment botched executions. 

The plain­tiffs fur­ther crit­i­cize a lack of ​“bench­marks” for expe­ri­ence and per­for­mance for the fir­ing squad and lethal injec­tion team lead­ers, the admin­is­tra­tive team, and the escort team. For instance, the admin­is­tra­tive team must pro­cure and con­duct tech­ni­cal reviews of the exe­cu­tion mate­ri­als to ensure ​“com­pli­ance” with the pro­to­col, but the pro­to­col does not require that team to have any spe­cif­ic train­ing or exper­tise in weapons, drugs, or med­ical sup­plies, and fails to define ​“com­pli­ance.” The escort team has no train­ing require­ments, even though they are respon­si­ble for prop­er­ly restrain­ing the condemned person. 

Additionally, the plain­tiffs argue that the pro­to­col fails to con­sid­er the poten­tial trau­ma the exe­cu­tion team may suf­fer. For instance, the fir­ing squad pol­i­cy ​“does not estab­lish stan­dards, guide­lines, or cri­te­ria of any kind to account for the expect­ed phys­i­o­log­i­cal and psy­cho­log­i­cal stress of shoot­ing to kill a liv­ing human being, includ­ing have to poten­tial­ly fire suc­ces­sive vol­leys of ammu­ni­tion in view of wit­ness­es or while watch­ing the con­demned per­son strug­gle against the restraints, cry out in pain, or bleed out.” Neither pol­i­cy includes ​“any psy­cho­log­i­cal screen­ing require­ments,” or ​“account[s] for the psy­cho­log­i­cal impact caused by par­tic­i­pa­tion in mul­ti­ple exe­cu­tions or a botched exe­cu­tion.” Idaho offi­cials pre­vi­ous­ly told Kevin Fixler of the Idaho Statesmanthat they specif­i­cal­ly sought police offi­cers for the fir­ing squad to min­i­mize stress on cor­rec­tions per­son­nel, but Sgt. Bryan Lovell of the Idaho Fraternal Order of Police empha­sized that police also expe­ri­ence severe trau­ma from the use of violent force. 

Finally, Mr. Pizzuto and Mr. Creech argue that by allow­ing any exe­cu­tion team par­tic­i­pant to devi­ate from the protocol’s require­ments with ​“pri­or con­sent from the Director,” the Director essen­tial­ly gives her­self a blank check over exe­cu­tions, exceed­ing her statu­to­ry author­i­ty. “[E]xecution poli­cies and pro­ce­dures that can be changed at will, at any time, or for any rea­son at all at the sole dis­cre­tion of the Director deprives con­demned per­sons and their legal rep­re­sen­ta­tives of the abil­i­ty to know what those poli­cies and pro­ce­dures may be in advance of an exe­cu­tion, and to review them and mean­ing­ful­ly chal­lenge them in court,” they write.

The pol­i­cy ​“vests the Director with de fac­to unlim­it­ed and unchecked pow­er over the con­demned in the weeks lead­ing up to and dur­ing the exe­cu­tion, and there­fore over the life and death of the con­demned per­son. That pow­er is patent­ly unrea­son­able, irra­tional, arbi­trary, capri­cious, and an abuse of discretion.” 

APA chal­lenges have result­ed in dif­fer­ing results in oth­er states.² For instance, state supreme courts in Ohio (2021), Oklahoma (2014), Georgia (2013), North Carolina (2011), Missouri (2009), and Tennessee (2005) held that exe­cu­tion pro­to­cols gen­er­al­ly or cer­tain spe­cif­ic changes were not sub­ject to the state’s Administrative Procedure Act. (Both Oklahoma plain­tiffs, Clayton Lockett and Charles Warner, lat­er expe­ri­enced high-pro­file botched exe­cu­tions.) These courts rea­soned that exe­cu­tion pro­to­cols are akin to ​“instruc­tion man­u­als,” and that rules involv­ing pris­on­ers and a nar­row set of cor­rec­tion­al employ­ees do not require pub­lic input. Other states have passed exemp­tions by legislation. 

However, in Kentucky (2009) and Maryland (2006), the state high courts held that admin­is­tra­tive review require­ments did apply. The Kentucky Supreme Court con­clud­ed that exe­cu­tion pro­to­cols are not ​“pure­ly of con­cern” to prison staff, and the leg­is­la­ture did not intend for the prison sys­tem ​“to be able to mod­i­fy, at will, with­out any over­sight, the man­ner in which the…most seri­ous pun­ish­ment is met­ed out.” California’s lethal injec­tion pro­to­col was sub­ject to APA require­ments between 2007 and 2017, which yield­ed tens of thou­sands of pub­lic com­ments; as a result, California courts blocked mul­ti­ple pro­to­col ver­sions.³

Read Mr. Pizzuto and Mr. Creech’s law­suit here.