Idaho Expands Execution Secrecy After Senate Committee Reconsiders Failed Vote

Idaho Governor Brad Little on March 25, 2022, signed into law an exe­cu­tion secre­cy bill that con­ceals from the pub­lic and the courts infor­ma­tion on the pro­duc­ers and sup­pli­ers of drugs used in exe­cu­tions in the state. 

House Bill 658 became law less than three weeks after the mea­sure failed on a 4 – 4 vote in the Senate Judiciary and Rules Committee. Under Idaho leg­isla­tive rules, a bill that fails in a com­mit­tee vote is nor­mal­ly dead for the remain­der of the leg­isla­tive ses­sion. However, in a con­tro­ver­sial par­lia­men­tary deci­sion that devi­at­ed from past leg­isla­tive prac­tice, com­mit­tee chair­man Sen. Todd Lakey ruled that a tie vote is a ​“nul­li­ty” that ​“decides noth­ing” and allowed the com­mit­tee to recon­sid­er the bill. 

Republican State Senator Christy Zito, who vot­ed against the bill in com­mit­tee, expressed con­cern over Lakey’s rul­ing, say­ing, ​“I don’t want to set a prece­dent that we may regret lat­er.” Zito said she has had bills with tie votes die in com­mit­tee in the past with­out being con­sid­ered eli­gi­ble for recon­sid­er­a­tion. On recon­sid­er­a­tion on March 14, Sen. Patti Anne Lodge, who was absent from the orig­i­nal com­mit­tee vote, vot­ed to advance the bill to the full Senate. The bill passed the Senate on March 18 by a vote of 21 – 14.

The new law dra­mat­i­cal­ly increas­es the secre­cy sur­round­ing Idaho’s drug pro­cure­ment process, pro­hibit­ing state offi­cials from dis­clos­ing the source of drugs used to car­ry out exe­cu­tions, includ­ing in court pro­ceed­ings. The law con­ceals the iden­ti­ties of “[a]ny per­son or enti­ty who com­pounds, syn­the­sizes, tests, sells, sup­plies, man­u­fac­tures, stores, trans­ports, pro­cures, dis­pens­es, or pre­scribes the chem­i­cals or sub­stances for use in an exe­cu­tion or that pro­vides the med­ical sup­plies or med­ical equip­ment for the exe­cu­tion process.” A sec­ond pro­vi­sion directs that the con­cealed infor­ma­tion ​“shall not be admis­si­ble as evi­dence or dis­cov­er­able in any pro­ceed­ing before any court, tri­bunal, board, agency, or person.”

Proponents of the bill had argued that the state would be unable to obtain drugs if they could not with­hold from the pub­lic the iden­ti­ty of their suppliers. 

Idaho had pre­vi­ous­ly stonewalled for a decade a pub­lic-records request for infor­ma­tion on the sup­pli­ers of the drugs used to car­ry out the state’s last two exe­cu­tions in 2011 and 2012. After the Idaho Supreme Court ordered the doc­u­ments to be released, it was dis­cov­ered that cor­rec­tions offi­cials had char­tered a plane and car­ried a suit­case onboard with $15,000 in cash to fly to Washington state to pur­chase drugs from a phar­ma­cy whose own­er was dis­ci­plined by the state phar­ma­cy board for vio­la­tions includ­ing stock­ing expired drugs. The court ordered the Idaho Department of Corrections to pay $170,000 in legal fees for its bad-faith refusal to pro­duce the records and per­son­al­ly fined a prison spokesper­son for his conduct.

The new law has drawn crit­i­cism from both sides of the polit­i­cal aisle, with oppo­nents of the bill say­ing state offi­cials should be increas­ing exe­cu­tion trans­paren­cy, rather than hid­ing crit­i­cal infor­ma­tion from the pub­lic. Sen. Zito not­ed that law­mak­ers will have to accept the respon­si­bil­i­ty of botched exe­cu­tions going for­ward. ​“Would you sit by the con­demned and inject a sub­stance into their bod­ies, not know­ing what it was?” Zito said. ​“Today, we decide what lev­el of trans­paren­cy and account­abil­i­ty that we want to live with.” 

Ronald Bush, a retired U.S. District Court judge who presided over the appeals of Paul Rhodes, whom Idaho exe­cut­ed in 2011 using covert­ly obtained lethal injec­tion drugs, tes­ti­fied before the Senate com­mit­tee that the leg­is­la­tion puts con­sti­tu­tion­al pro­tec­tions against cru­el and unusu­al pun­ish­ment and the First Amendment free speech rights of the pub­lic at risk. Bush not­ed that the Idaho Department of Corrections act­ed ​“sur­rep­ti­tious­ly” in the most recent exe­cu­tions and that, with lethal injec­tion, ​“it’s the details that matter.” 

The Idaho Press Association and the American Civil Liberties Union of Idaho also tes­ti­fied in oppo­si­tion to the bill, stress­ing prin­ci­ples of open gov­ern­ment. “[I]f Idaho con­tin­ues to exe­cute its death row pris­on­ers, the process must remain trans­par­ent and the gov­ern­ment account­able,” Idaho ACLU pol­i­cy strate­gist Laura Bramwell told the com­mit­tee. Idaho Association of Criminal Defense Lawyers rep­re­sen­ta­tive Teresa Molitor warned that ​“secre­cy statutes” increase the like­li­hood of botched exe­cu­tions ​“by shroud­ing all of the prepa­ra­tion in darkness.” 

Death Penalty Information Center Executive Director Robert Dunham tes­ti­fied that when reporters or lit­i­gants have uncov­ered infor­ma­tion hid­den by state exe­cu­tion secre­cy laws and poli­cies, they ​“have found evi­dence of ille­gal actions, mis­rep­re­sen­ta­tions to the courts and the pub­lic, gross over­charg­ing, and incom­pe­tence in the con­duct of exe­cu­tions.” ​“States have con­cealed the use of ille­gal­ly import­ed drugs, vio­la­tions of their own exe­cu­tion pro­to­cols, deal­ings with less than rep­utable drug sources, and unqual­i­fied exe­cu­tion­ers,” he said.