Idaho legislator doesn't want judicial review of execution protocol

The director of the Idaho prison system has exclusive authority to set and revise the state’s protocols for carrying out the death penalty, and a lawmaker wants to ensure those decisions are not subject to judicial review, reported the Idaho Statesman.

 In January, Rep. Bruce Skaug, R-Nampa, proposed the change in law and described it as a “cleanup bill” for technical updates to statute. Facing pushback from fellow representatives at a committee hearing, Skaug agreed to retool the bill so it did not go beyond his stated intent.

The issue for which Skaug takes aim is at the heart of a death row prisoner’s lawsuit on appeal with the Idaho Supreme Court. Gerald Pizzuto’s attorneys argue that former Idaho Department of Correction Director Josh Tewalt abused his power when he arbitrarily changed lethal injection procedures in late 2024. That decision violates a law that grants oversight of state agencies and their actions to the legislative and judicial branches of government, attorneys with the Federal Defender Services of Idaho said. “The director of the Idaho Department of Correction believes the Legislature gave him a license to kill condemned prisoners any way he wants,” Pizzuto’s attorneys with the legal nonprofit wrote in a recent court filing. “The director is wrong. The Legislature has not given him unlimited power, cannot give him that power, and has not stripped the courts of jurisdiction.”

Tewalt’s changes to the state’s lethal injection protocols came about eight months after the prison system failed to execute a different death row prisoner in early 2024 when its execution team could not find a vein in his body suitable for an IV to deliver the chemicals. The change added a room where prisoners are to be examined and prepped for either a standard peripheral IV, or a central line — a more invasive procedure that inserts into the internal jugular in the neck, a femoral vein in the upper thigh or a subclavian vein in the chest. The next year, Skaug, who chairs the House judiciary committee, sponsored a bill that makes a firing squad the state’s lead execution method.

The Republican-controlled Idaho Legislature approved the bill that kept lethal injection as a backup option, and Gov. Brad Little signed it into law. Executions are on hold in Idaho as the prison system completes renovations to its execution chamber as part of the transition to a firing squad. The cost of that construction is roughly $1 million. Idaho is one of 27 states with the death penalty, but has not executed a prisoner in what will soon be 14 years.

The state counts eight prisoners on its death row, including Pizzuto. ‘A second bite of the apple’ The Idaho Attorney General’s Office represents IDOC in the legal appeal. It asserts that the agency’s director and their execution procedure decisions are excluded from Administrative Procedure Act review, including by the courts.

With limited exceptions, the governor-appointed Board of Correction, which oversees the state agency and selects its director, is exempt under that law. A district court judge in Ada County sided with IDOC and dismissed the case brought by Pizzuto, who was convicted in 1986 of killing two people in a robbery north of McCall and sentenced to death.

The Supreme Court in 2022 already ruled against Pizzuto in a similar lawsuit based on the same overarching law, leading the Attorney General’s Office to argue this new appeal “seeks a second bite of the apple,” which should be denied. Pizzuto, 70, is Idaho’s second-longest death row prisoner after nearly 40 years, and has overcome five scheduled execution dates during that time. In 2021, the state parole board voted to drop Pizzuto’s sentence to life in prison, but Little rejected it.

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