Investigative Report: Idaho Records Reveal State’s Efforts to Conceal Ghost Purchase of Execution Drugs and Out-of-State Cash Payment to Pharmacy With Dubious Regulatory History

Idaho prison offi­cials engaged in cloak and dag­ger prac­tices, includ­ing twice send­ing state employ­ees across state lines to make cash pur­chas­es of con­trolled sub­stances intend­ed for exe­cu­tions, active­ly con­ceal­ing the intend­ed use of the drugs, manip­u­lat­ing state records to cov­er up their activ­i­ties, and act­ing in bad faith to stonewall pub­lic records requests for exe­cu­tion-relat­ed infor­ma­tion, a joint inves­tiga­tive report by the Idaho Statesman and the Idaho Capital Sun has revealed. 

Records obtained after near­ly a decade of obstruc­tion by Idaho Department of Corrections (IDOC) ​“show how IDOC active­ly worked to keep its exe­cu­tion activ­i­ties off the books,” wrote inves­tiga­tive reporter Kevin Fixler in a January 19, 2022 exposé in the newspapers. 

“Top-lev­el prison offi­cials spent from con­fi­den­tial cash accounts, direct­ed staff in an inter­nal memo not to make any exe­cu­tion pur­chas­es through typ­i­cal chan­nels, and wound up sourc­ing the lethal injec­tion drugs from phar­ma­cies with dubi­ous reg­u­la­to­ry his­to­ries,” Fixler found. An inter­nal IDOC mem­o­ran­dum, he report­ed, ​“includes point­ers to prison staff on how to avoid the finan­cial detec­tion that could help iden­ti­fy a source of the execution drugs.”

The doc­u­ments — the bulk of which were dis­closed under court order as a result of a pub­lic-records law­suit brought by University of Idaho law pro­fes­sor Aliza Cover — show that IDOC used a phar­ma­cist from a psy­chi­atric treat­ment cen­ter that was part of the Idaho Department of Health and Welfare (IDHW) net­work as the ghost pur­chas­er of drugs to exe­cute Paul Rhoades in 2011. IDHW spokesper­son Niki Forbing-Orr con­firmed in an email to the Statesman that IDHW had ​“request­ed a clin­i­cal phar­ma­cist employ­ee trav­el to Salt Lake City in November 2011 to pick up pen­to­bar­bi­tal from a phar­ma­cy for the state of Idaho.” A for­mer IDOC deputy chief of pris­ons tes­ti­fied in a depo­si­tion that IDOC had paid ​“upward of $10,000 in cash” for the out-of-state drug purchase.

After what an IDOC memo char­ac­ter­ized as ​“trou­bles” with the Rhoades exe­cu­tion, prison offi­cials found a new drug sup­pli­er for the 2012 exe­cu­tion of Richard Leavitt, the last per­son put to death in Idaho. Court doc­u­ments and inter­nal IDOC records show that IDOC char­tered a pri­vate plane at a cost of $2,448 to fly cur­rent IDOC Director Josh Tewalt and then IDOC chief of pris­ons Kevin Kempf round trip to Tacoma, Washington to pur­chase com­pound­ed pen­to­bar­bi­tal from phar­ma­cist Kim Burkes, the own­er of the Union Avenue Compounding Pharmacy. Tewalt and Kempf brought a suit­case with $15,000 with them on the flight, and exchanged the mon­ey for the drugs in the Walmart park­ing lot of the shop­ping cen­ter in which the phar­ma­cy was located.

Fixler report­ed that ​“In February 2017, the Washington Department of Health placed Burkes’ pharmacist’s license on pro­ba­tion for one year for repeat inspec­tion vio­la­tions in 2015 and 2016,” includ­ing vio­la­tions for stock­ing expired drugs — a crit­i­cal fac­tor in lethal injec­tions. Burkes was the sec­ond phar­ma­cist asso­ci­at­ed with the Union Avenue Compounding Pharmacy to have their license placed on probation.

Fixler’s arti­cle comes as Idaho pros­e­cu­tors renewed their push to exe­cute ter­mi­nal­ly ill death-row pris­on­er Gerald Pizzuto, Jr. IDOC offi­cials have not stat­ed whether they cur­rent­ly have the drugs need­ed for Pizzuto’s exe­cu­tion or where they would get those drugs. In a state­ment pro­vid­ed to the Statesman, Jonah Horwitz, one of Pizzuto’s attor­neys, said ​“IDOC’s his­to­ry of resort­ing to shady drug sources for its most recent exe­cu­tions makes it more like­ly that it will happen again.”

American Civil Liberties Union of Idaho legal direc­tor, Ritchie Eppink, who rep­re­sent­ed Cover in her law­suit, told the Statesman, ​“The Department of Correction seems to have very lit­tle respect for the law, and cer­tain­ly almost no respect for democ­ra­cy and pub­lic trans­paren­cy. … Our gov­ern­ment should not have any­thing to hide when it comes to the most seri­ous thing that the gov­ern­ment does, which is kill a human being.”

The Public Records Lawsuit

IDOC fought against Cover’s law­suit more than three years, after deny­ing most of Cover’s September 2017 request for doc­u­ments relat­ed to the department’s pur­chase and use of lethal injec­tion drugs. ​“If the way that Idaho is killing peo­ple was hon­or­able, the Department of Correction in the state of Idaho would be putting that infor­ma­tion on its web­site,” Eppink said. ​“But they don’t want you to know this, because they don’t want the pub­lic to under­stand how out­ra­geous their entire exe­cu­tion process is, includ­ing the taxpayer money.” 

Redacted doc­u­ments obtained at ear­li­er stages of Cover’s law­suit revealed that Idaho offi­cials had delib­er­ate­ly mis­led the pub­lic about the costs and appli­ca­tion of the state’s death penal­ty and that prison offi­cials had engaged in ques­tion­able — and pos­si­bly ille­gal — con­duct in their efforts to obtain exe­cu­tion drugs. In addi­tion to cash pay­ments for drugs, the evi­dence showed IDOC had main­tained a set of fraud­u­lent finan­cial records relat­ed to exe­cu­tion expens­es, false­ly denied hav­ing records doc­u­ment­ing con­tacts with a dis­rep­utable drug sup­pli­er in India, and hid from the pub­lic infor­ma­tion as mun­dane as the hair­dressers who give pris­on­ers their final haircuts. 

While Cover’s law­suit was in court, IDOC sought and obtained leg­isla­tive approval to exempt from the pub­lic records law the doc­u­ments she had request­ed. The Idaho Supreme Court ordered release of unredact­ed doc­u­ments, and the state’s courts direct­ed IDOC to pay $170,000 in legal fees for its bad-faith refusal to pro­duce the records and per­son­al­ly fined IDOC spokesper­son Jeff Ray $1,000 for his conduct. 

In an email to the Idaho Statesman, Cover said this law­suit was impor­tant because “[t]he peo­ple of Idaho have a strong inter­est in know­ing how the gov­ern­ment is car­ry­ing out the death penal­ty in their name.”

The Implications for Efforts to Execute Gerald Pizzuto, Jr.

Idaho’s his­to­ry of obtain­ing exe­cu­tion drugs from ques­tion­able sources has sig­nif­i­cance for Idaho’s plans to exe­cute Pizzuto. On December 30, 2021, Governor Brad Little reject­ed the Idaho Commission of Pardons and Parole rec­om­men­da­tion that Pizzuto’s death sen­tences be com­mut­ed to life with­out parole. An Idaho tri­al court heard argu­ment January 20, 2022 on Pizzuto’s claim that Idaho’s con­sti­tu­tion bars Little from reject­ing the commission’s decision. 

Pizzuto — who is 65 years old, has late-stage blad­der can­cer, heart dis­ease, dia­betes, chron­ic obstruc­tive pul­monary dis­ease, and has been on hos­pice for two years — also argues that, because of his med­ical con­di­tion, it would be uncon­sti­tu­tion­al for Idaho to exe­cute him by lethal injec­tion. Horowitz argues that “[u]sing drugs of ques­tion­able qual­i­ty or reli­a­bil­i­ty would be dan­ger­ous under any cir­cum­stances, and would pose even more of a threat to Mr. Pizzuto because of his grave heart con­di­tion and com­pli­cat­ed medication history.” 

Dr. Jim Ruble, a lawyer and doc­tor of phar­ma­cy who teach­es at the University of Utah College of Pharmacy, told the Statesman that both the use of a com­pound­ing phar­ma­cy and Pizzuto’s med­ical con­di­tion make his exe­cu­tion prob­lem­at­ic. Ruble said that “[t]here are pro­found dif­fer­ences” in qual­i­ty between drugs mass pro­duced by com­mer­cial phar­ma­ceu­ti­cal man­u­fac­tur­ers and drugs mixed in indi­vid­ual batch­es by com­pound­ing phar­ma­cies. While the U.S. Food and Drug Administration eval­u­ates com­mer­cial­ly pro­duced drugs for safe­ty, effec­tive­ness, and qual­i­ty, it has no such over­sight over com­pound­ed drugs. Compounded pen­to­bar­bi­tal tends to be less reli­able, Ruble said, even before issues relat­ing to the prac­tices of indi­vid­ual com­pounders are con­sid­ered. In addi­tion, the reac­tion to the drug by “[a]n indi­vid­ual with a lot of com­pro­mised organ sys­tems is not as pre­dictable,” adding anoth­er lay­er of uncertainty.”

Fixler began his inves­ti­ga­tion while a free­lance writer with the Capital Sun, receiv­ing fund­ing from the Gumshoe Group, a non-prof­it orga­ni­za­tion that pro­vides resources to inde­pen­dent reporters attempt­ing to obtain pub­lic records for impact report­ing. His inves­ti­ga­tion con­tin­ued after he joined the staff of the Statesman. He also reviewed the unredact­ed doc­u­ments dis­closed in Cover’s public-records litigation.