Idaho committee kills bill expanding execution drug secrecy

By REBECCA BOONE

Associated Press

BOISE — A bill that would have increased the secrecy surrounding Idaho's execution drug suppliers died in a Senate committee hearing Wednesday on a tie vote.

The legislation would have barred Idaho officials from releasing where they obtain the drugs used in lethal injections, but it drew heavy opposition from criminal defense attorneys, a retired federal judge and various organizations who all argued that capital punishment requires more transparency, not less.

Members of the Senate Judiciary Committee voted 4-4 on whether to advance the bill, which means the legislation automatically fails.

During testimony, Deputy Attorney General Mark Kubinski told the committee that the legislation was needed because anti-death penalty advocates could try to identify and then publicly shame the companies or individuals that supply lethal injection drugs. He said such instances had happened around the country, making it increasingly difficult for departments of correction to obtain the materials needed for executions.

Idaho Department of Correction Director Josh Tewalt said potential drug suppliers want the confidentiality provisions written into state law before they will sell to Idaho's prison officials.

“As I stand before you today, we have been unable to secure the chemicals necessary to carry out lethal injection in the state of Idaho,” Tewalt told the committee.

He said concerns that the department might use tainted or inappropriate drugs are unfounded, and any questions about whether lethal injection amounts to cruel and unusual punishment have already been resolved by the nation's court system. If IDOC officials have any question about the suitability of a lethal injection medication, they will not use it, Tewalt said.

“I've never felt pressure ... to carry out an execution regardless of what the potential consequences might be,” Tewalt said. “The understanding has always been, if we can't do this with professionalism and dignity and respect, then we don't do it.”

But Ronald Bush, a retired U.S. District Court judge who has presided over cases where a condemned Idaho inmate was fighting the state's execution policy, said the legislation puts the Eighth Amendment rights of a condemned person and the First Amendment rights of the general public at risk.

Bush said he was speaking as a private citizen, not a representative of the courts. He said the Idaho Department of Correction has acted “surreptitiously” in two previous executions.

Bush presided over the case of Paul Ezra Rhoades, who was executed in 2011 for his role in the murders of two women in 1987. Days before the lethal injection was to occur, Rhoades asked Bush to temporarily halt the execution while Rhoades continued to fight the state's execution procedures in court.

During a hearing on the request, the Idaho Department of Correction withheld information about how they were obtaining the executions drugs, “even though they were well aware that I was concerned about the hasty manner in which the state was going about this execution,” Bush said.

Bush denied Rhoades' request, and he was put to death eight days later.

The judge found out years later — thanks to a public records lawsuit that exposed some details about the previous executions — that on the very same day of the hearing, a state employee was using cash to buy the drugs from a pharmacist in Salt Lake City.

“I don't know if that information would have caused me to think differently than I did, but it certainly would have been something I would have looked at carefully,” Bush said.

The legislation would also have prohibited information about drug sources from being revealed even in court, Bush said, effectively turning it into a “black box.”

“That raised my eyebrows because I question whether that could be properly done," he said.

In lethal injection executions, “it's the details that matter,” Bush said, noting that there have been instances in other states where executions have been botched, resulting in “horrific and even barbaric circumstances.”

Anne Taylor, a criminal defense attorney who is qualified to represent people facing the death penalty, said she already has to tell her clients that under state law they won't find out exactly which drug or drug combination will be used in executions until it is often too late to take legal action. Idaho allows the Department of Correction to withhold that information until shortly before an execution.

Lobbyist Teresa Molitor, representing the Idaho Association of Criminal Defense Lawyers, said “secrecy statutes” like the proposed bill make botched executions more likely “by shrouding all of the preparation in darkness.”

And Lauren Bramwell with the American Civil Liberties Union of Idaho said states have used secrecy laws as a pretext to hide improper conduct.

“If Idaho continues to execute its death row prisoners, the process must remain transparent and the government accountable,” she said.

After the hearing, Idaho Department of Correction spokesman Jeff Ray reiterated that the director, Tewalt, was not there as an advocate for the death penalty but simply to let lawmakers know what conditions are necessary for the state to carry out executions.

“We respect the process,” Ray wrote in an email. “It will be up to those policymakers to decide what’s next for the legislation.”