Idaho Supreme Court says man who survived execution can be executed again

Idaho’s high court dismissed a final state appeal from Thomas Creech, leaving the federal courts to decide whether Idaho can try again to execute its longest-serving death row prisoner after a failed attempt earlier this year, reported the Idaho Stateman. The Idaho Supreme Court unanimously rejected Creech’s arguments that a second execution attempt would represent cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution.

In February, the execution team was unable after nearly an hour to find a vein in Creech’s body suitable for an IV to lethally inject him, and prison leaders called off the execution. Creech became the first-ever prisoner to survive an execution in Idaho and just the sixth in U.S. history to survive one by lethal injection, according to the Washington, D.C.-based Death Penalty Information Center. Creech alleged in his appeal that another lethal injection attempt, this time possibly with a stepped-up method known as a central line IV, which uses a catheter through a jugular in the neck, or vein in the upper thigh or chest, would violate his constitutional rights.

 A lower state court ruled against the claim last month. “The application does not support, with any likelihood, the conclusion that the pain other inmates purportedly suffered in other states establishes an ‘objectively intolerable’ risk of pain for Creech, as required under the Eighth Amendment,” Idaho Chief Justice G. Richard Bevan wrote for the court. Idaho’s five justices also ruled against Creech in a similar appeal earlier this month. The court’s ruling Wednesday sided with Idaho Attorney General Raúl Labrador’s office and was determined on legal briefs alone.

No oral arguments were scheduled in the appeal. Justice Robyn M. Brody, left, and Chief Justice G. Richard Bevan are two of the five members of the Idaho Supreme Court. They ruled unanimously against an appeal from death row prisoner Thomas Creech on Wednesday.

Justice Colleen Zahn recused herself from Creech’s appeal and was replaced by Senior Justice Roger Burdick, who retired from the court in 2021. Zahn cited her decadelong tenure in the Attorney General’s Office before her appointment to the Supreme Court bench, state courts spokesperson Nate Poppino previously told the Idaho Statesman. The State Appellate Public Defender’s Office, Creech’s attorneys in the case, did not respond Wednesday to a request for comment from the Idaho Statesman.

The Attorney General’s Office declined to comment after the ruling. The Federal Defender Services of Idaho, which represents Creech in three other active appeals in federal court, declined to comment, including on its own federal appeal with the same legal arguments as the case just dismissed by the Idaho Supreme Court. Creech also has declined any interviews at this time through his attorneys. Creech was set to be executed earlier this month after he was served with a death warrant from Ada County Prosecuting Attorney Jan Bennetts’ office.

A federal judge issued a stay and hit pause on the scheduled execution timeline before Idaho could follow through on the state’s first execution in more than a dozen years. Creech, 74, has been incarcerated for 50 years on five murder convictions, including three victims in Idaho. His standing death sentence stems from the May 1981 beating death of fellow prisoner David D. Jensen, 23, for which Creech pleaded guilty. Before that, Creech was convicted of the November 1974 shooting deaths of two men in Valley County in Idaho, and later the shooting death of a man in Oregon and another man’s death by strangulation in California.

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