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.