New Idaho Law Shields Execution Procedures from Judicial Review and Public Scrutiny

Idaho law 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.” However, a bill signed March 31 by Gov. Brad Little (R) exempts exe­cu­tion pro­ce­dures from these over­sight require­ments. If the prison direc­tor decides to alter the exe­cu­tion pro­to­col, death-sen­tenced pris­on­ers will only be able to chal­lenge those changes on con­sti­tu­tion­al grounds—like­ly moot­ing a law­suit the Idaho Supreme Court was set to review this year. The bill also expands the state’s exe­cu­tion secre­cy appa­ra­tus by extend­ing anonymi­ty to mem­bers of the fir­ing squad and ​“any per­son or enti­ty that pro­vides tech­ni­cal assis­tance dur­ing the execution process.”

The new bill had stalled ear­li­er in the leg­isla­tive ses­sion and was rein­tro­duced in March, when it passed both hous­es with few objec­tions. Senate Minority Leader Melissa Wintrow, who opposed the bill, ​“ques­tioned why the state would lim­it pub­lic and leg­isla­tive input on pro­ce­dures, par­tic­u­lar­ly for some­thing as sig­nif­i­cant as exe­cu­tions.” Current IDOC direc­tor Bree Derrick tes­ti­fied to a com­mit­tee of law­mak­ers that the bill was about ​“not want­i­ng folks to weigh in — you know, the pub­lic or oth­ers — to weigh in on rule­mak­ing relat­ed to exe­cu­tion pro­ce­dures, specifically.”

The new law states that exe­cu­tion pro­ce­dures are not sub­ject to judi­cial review under Idaho’s Administrative Procedure Act (APA). First passed 80 years ago at the fed­er­al lev­el and sub­se­quent­ly adopt­ed with slight vari­a­tions by all fifty states, the APA lays out the stan­dards gov­ern­ment agen­cies must fol­low when adopt­ing new rules to ensure pub­lic par­tic­i­pa­tion, trans­paren­cy of deci­sion-mak­ing, and account­abil­i­ty for deci­sion­mak­ers. Over the years, state and fed­er­al leg­is­la­tors have carved out var­i­ous excep­tions to the APA, and courts around the coun­try are often tasked with decid­ing whether cer­tain gov­ern­ment actions qual­i­fy as administrative rulemaking. 

Idaho already exempt­ed its Board of Correction, which over­sees the Department of Corrections (IDOC) and selects its direc­tor, from APA review. However, state offi­cials and advo­cates had dis­agreed over whether the IDOC direc­tor and his activ­i­ties — includ­ing set­ting exe­cu­tion pro­ce­dures — are also exempt. The new law con­firms they are. That means the cor­rec­tions direc­tor can now make changes to the state’s exe­cu­tion pro­to­col with no pub­lic notice or judi­cial over­sight, short of con­sti­tu­tion­al chal­lenges (such as argu­ing that the new pro­to­col con­sti­tutes cru­el and unusual punishment). 

“APA review sets only a min­i­mal stan­dard for gov­ern­ment agen­cies; it sim­ply asks whether a pol­i­cy is rea­son­able and not arbi­trary,” said the ACLU of Idaho. ​“Eliminating even this mod­est over­sight is par­tic­u­lar­ly trou­bling giv­ing IDOC’s recent record.”

After the state’s last lethal injec­tion exe­cu­tion in 2012, offi­cials strug­gled to secure exe­cu­tion drugs, resort­ing to dubi­ous tac­tics includ­ing all-cash pur­chas­es in park­ing lots and road­side exchanges. Gov. Little signed a bill in 2022 to shield infor­ma­tion about the drugs it used, then in 2023 added the fir­ing squad as an exe­cu­tion method. In February 2024, the state botched its first attempt­ed lethal injec­tion in over a decade; 73-year-old chron­i­cal­ly ill pris­on­er Thomas Creech was returned to his cell after the state unsuc­cess­ful­ly tried for an hour to set an IV line. The IDOC direc­tor then mod­i­fied the lethal injec­tion pro­to­col to allow staff to set a cen­tral line, a more inva­sive pro­ce­dure involv­ing major rather than peripheral veins.

Critics argue that the new bill was designed to moot a law­suit from pris­on­er Gerald Pizzuto attack­ing that pro­to­col change. Mr. Pizzuto, who is ter­mi­nal­ly ill with blad­der can­cer, has been on death row for 40 years and faced five exe­cu­tion dates. He argued that the direc­tor vio­lat­ed the APA by arbi­trar­i­ly chang­ing the pro­to­col with­out meet­ing pub­lic account­abil­i­ty require­ments. He appealed a state judge’s dis­missal of the suit to the Idaho Supreme Court, which had ordered brief­ing in the case this year. That court ruled against Mr. Pizzuto in a sim­i­lar chal­lenge in 2022. Mr. Pizzuto was also a par­ty to a law­suit that revealed details of the state’s lethal injection purchases. 

The new law will take effect on July 1 this year, the same day that the fir­ing squad will offi­cial­ly become Idaho’s pri­ma­ry exe­cu­tion method—the only state with that dis­tinc­tion. Officials are spend­ing close to $1 mil­lion to con­vert the exe­cu­tion cham­ber in prepa­ra­tion, after $200,000 of pen­to­bar­bi­tal expired in the wake of Mr. Creech’s botched lethal injection. 

The law also includes what could be a sig­nif­i­cant expan­sion of the state’s shroud of secre­cy over exe­cu­tions. Its pro­po­nents char­ac­ter­ized the leg­is­la­tion as a ​“cleanup bill” — mere­ly apply­ing the same anonymi­ty grant­ed to lethal injec­tion team mem­bers to the fir­ing squad. However, the law adds new lan­guage con­ceal­ing the iden­ti­ty of ​“any per­son or enti­ty that pro­vides tech­ni­cal assis­tance dur­ing the exe­cu­tion process.” Executions typ­i­cal­ly involve sub­stan­tial logis­ti­cal plan­ning, from main­tain­ing lines of con­tact with courts and the governor’s office to estab­lish­ing road­blocks and des­ig­nat­ed areas for pro­tes­tors. The law does not clar­i­fy the scope of ​“tech­ni­cal assistance.”