Idaho: New Death Sentence, Updates on Executions, and Lethal Injection Drug Purchase

On June 1, 2024, an Idaho jury sen­tenced Chad Daybell to death for the 2019 mur­ders of his first wife and his sec­ond wife’s two youngest chil­dren. Mr. Daybell plead­ed not guilty to mul­ti­ple first-degree mur­der, fraud, and con­spir­a­cy charges, but after being found guilty, he chose to waive his right to present mit­i­gat­ing evi­dence dur­ing his sen­tenc­ing hear­ing. With this deci­sion, Mr. Daybell declined the oppor­tu­ni­ty to pro­vide the jury with rea­sons why he should not be sen­tenced to death. Judge Steven Boyce con­firmed with Mr. Daybell that he did not intend to present any mit­i­ga­tion and Mr. Daybell said, ​“that is my choice.” John Prior, his only defense attor­ney, argued in open­ing and clos­ing state­ments that Mr. Daybell’s sec­ond wife, Lori Daybell, had changed him and ​“cre­at­ed the per­son who com­mit­ted these crimes.” Lori Daybell was found guilty in an ear­li­er tri­al and sen­tenced to three life sen­tences. She is cur­rent­ly await­ing tri­al in Arizona on a sep­a­rate murder change. 

Following their release from jury duty, two jurors spoke with local news and dis­cussed Mr. Daybell’s deci­sion not to present mit­i­gat­ing evi­dence. One of the jurors, Tracie Bradley, said when it came to deter­min­ing the sen­tence, ​“it’s like there was no mit­i­gat­ing cir­cum­stances to not jus­ti­fy the death penal­ty after what he did.” Ms. Bradley added that ​“it was very shock­ing that [Mr. Daybell] wouldn’t say any­thing.” In 1976, the United States Supreme Court held that juries must con­sid­er the char­ac­ter and record of indi­vid­ual defen­dants before impos­ing a death sen­tence. The Court not­ed that ​“the fun­da­men­tal respect for human­i­ty” under­ly­ing the Eighth Amendment required such con­sid­er­a­tions. These con­sid­er­a­tions are usu­al­ly con­sid­ered in the sen­tenc­ing phase, so that the jury can make an indi­vid­u­al­ized sentencing determination. 

During the final days of Mr. Daybell’s tri­al, media report­ed that the Idaho Department of Corrections (IDOC) had pur­chased three dos­es of pen­to­bar­bi­tal, the drug used in lethal injec­tions, for $100,000. This pur­chase price is dou­ble what IDOC spent in October 2023 for the same kind and quan­ti­ty of drugs. In 2011 and 2012, IDOC paid about $25,000 for the pen­to­bar­bi­tal used in the state’s last two executions.

In February 2024, IDOC unsuc­cess­ful­ly attempt­ed to exe­cute Thomas Creech because of dif­fi­cul­ties estab­lish­ing an IV line. Mr. Creech has been on death row for near­ly 50 years, and his attor­ney alleges that he ​“is still strug­gling with severe men­tal health trau­ma due to the botched exe­cu­tion.” For Mr. Creech’s sched­uled exe­cu­tion, IDOC offi­cials pre­pared two of three dos­es of pen­to­bar­bi­tal in their pos­ses­sion, leav­ing just one dose remain­ing for future use. Josh Tewalt, the Director of IDOC, acknowl­edged after paus­ing Mr. Creech’s exe­cu­tion that they would need more pen­to­bar­bi­tal to car­ry out future lethal injec­tion exe­cu­tions, and was con­fi­dent they could acquire those drugs when nec­es­sary. Attorneys for Mr. Creech have renewed their claims of cru­el and unusu­al pun­ish­ment because of the more than eight times the exe­cu­tion team attempt­ed to estab­lish an IV line to admin­is­ter the execution drug.

Prior to Mr. Creech’s botched exe­cu­tion, the state of Idaho issued three sep­a­rate death war­rants for Gerald Pizzuto, with each date being post­poned. At least one of these dates was post­poned because of the state’s inabil­i­ty to acquire lethal injec­tion drugs. Mr. Pizzuto, who has been on death row for near­ly 40 years, has been receiv­ing hos­pice treat­ment for late-stage blad­der can­cer for more than three years. Mr. Pizzuto’s March 2023 sched­uled exe­cu­tion was indef­i­nite­ly paused by U.S. District Court Judge B. Lynn Winmill, who grant­ed him a hear­ing in his claim that the state of Idaho vio­lates his Constitutional right against cru­el and unusu­al pun­ish­ment by repeat­ed­ly sched­ul­ing exe­cu­tion dates while know­ing the state does not have the means to car­ry it out. 

Mr. Pizzuto also filed a legal claim seek­ing the pres­ence of a reli­gious advi­sor in the exe­cu­tion cham­ber. Following the Supreme Court’s deci­sion in Ramirez v. Collier, the Idaho DOC vol­un­tar­i­ly agreed to his requests. But the IDOC has not changed its writ­ten pol­i­cy, which does not allow for a spir­i­tu­al advi­sor in the cham­ber. When the IDOC moved to dis­miss the law­suit on moot­ness grounds, Mr. Pizzuto argued the case should remain live until the writ­ten poli­cies were changed but the dis­trict court dis­missed, say­ing he no longer had a per­son­al stake in the case.

Attorneys for Mr. Pizzuto have also asked that the U.S. District Court bar Idaho from attempt­ing anoth­er exe­cu­tion of Mr. Creech, argu­ing that he is a mate­r­i­al wit­ness who can prove Idaho’s inabil­i­ty to car­ry out an exe­cu­tion with­out vio­lat­ing his con­sti­tu­tion­al rights. ​“If the [state of Idaho is] per­mit­ted to destroy Mr. Pizzuto’s oppor­tu­ni­ty to present this court with the tes­ti­mo­ny of Mr. Creech by exe­cut­ing him, Mr. Pizzuto faces irrepara­ble harm,” said Mr. Pizzuto’s defense attor­neys. They added that ​“with­out Mr. Creech’s tes­ti­mo­ny, the [state] can sim­ply assert, as they pre­vi­ous­ly have, that the exe­cu­tion team will make no mis­takes dur­ing Mr. Pizzuto’s execution.”