Idaho Supreme Court Denies Stay of Execution to State’s Longest Serving Death Row Prisoner Ahead of Feb 28 Execution Date

On February 9, 2024, the Idaho Supreme Court unan­i­mous­ly dis­missed two state appeals for 73-year-old Thomas Creech, there­by deny­ing his requests for a stay of exe­cu­tion. Mr. Creech, who has been on death row for more than 40 years, has also request­ed a new clemen­cy hear­ing. He is sched­uled to be exe­cut­ed by lethal injec­tion on February 28, which would be Idaho’s first exe­cu­tion since 2012. 

The jus­tices upheld the dis­trict court’s denial, agree­ing that both appeals were not filed in a time­ly man­ner accord­ing to Idaho law. Garth McCarty of the State Appellate Public Defender’s Office argued in one appeal that Mr. Creech had received inef­fec­tive assis­tance of coun­sel dur­ing post­con­vic­tion pro­ceed­ings; Jonah Horwitz of the Federal Public Defender’s Office argued in the sec­ond appeal that the impo­si­tion of a death sen­tence sole­ly by a judge, not a jury, vio­lat­ed Mr. Creech’s rights under the U.S. Constitution and Idaho Constitution. The prac­tice has since been out­lawed in the state, which now requires a unan­i­mous jury ver­dict for the impo­si­tion of a death sentence. 

“We are dis­ap­point­ed that the Idaho Supreme Court chose not to answer the ques­tion of whether it’s uncon­sti­tu­tion­al for Idaho to exe­cute some­one who was sen­tenced to death by a judge with­out a jury when it’s the last state in the coun­try putting such peo­ple to death,” said one of Mr. Creech’s attor­neys Deborah Czuba fol­low­ing the loss. ​“The court’s deci­sion doesn’t change the fact that the coun­try has put this prac­tice behind it, and it doesn’t change the fact that the very judge who sen­tenced Tom to death now oppos­es his exe­cu­tion because it would just be an ​‘act of vengeance.’” 

A few weeks ear­li­er, the Idaho Commission of Pardons and Parole held a clemen­cy hear­ing for Mr. Creech, the third hear­ing of its kind in the state’s his­to­ry. The 3 – 3 tie vote, with the sev­enth mem­ber of the board recus­ing him­self for an undis­closed rea­son, result­ed in a rec­om­men­da­tion against Mr. Creech’s plea for a life sen­tence; Mr. Creech’s attor­neys argue that the recusal deprived him of the oppor­tu­ni­ty to per­suade anoth­er mem­ber of the board. Although the gov­er­nor is not oblig­at­ed to fol­low the board’s rec­om­men­da­tion, Governor Brad Little stat­ed he has ​“zero inten­tion” of grant­i­ng a stay. On February 7, attor­neys for Mr. Creech filed a motion with the U.S. District Court of Idaho request­ing a new hear­ing ​“because the Commission failed to com­ply with min­i­mal due process require­ments by accept­ing and con­sid­er­ing the prosecution’s last-minute false state­ments and ques­tion­able evi­dence with­out allow­ing Mr. Creech a chance to inves­ti­gate and demon­strate the prosecution’s mis­rep­re­sen­ta­tions.” The peti­tion adds: ​“Likewise, Mr. Creech brings this action against the pros­e­cu­tion because it too vio­lat­ed due process through mis­rep­re­sen­ta­tions and the use of ques­tion­able evi­dence, as well as its fail­ure to pro­vide Mr. Creech with any notice of this evidence.”