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Legislative committee advances bill giving confidentiality to providers of lethal injection drugs

Idaho State Capitol building in Boise on March 20, 2021. (Otto Kitsinger for Idaho Capital Sun)
Otto Kitsinger
Idaho State Capitol building in Boise on March 20, 2021. (Otto Kitsinger for Idaho Capital Sun)

Idaho Department of Correction director says the state does not have the ability to secure the drugs to execute Idahoans on death row

A bill that would provide confidentiality to the manufactures of lethal injection drugs used in executions in the state is headed to the Idaho House of Representatives.

On Thursday afternoon, the House Judiciary, Rules and Administration Committee voted to send House Bill 658 to the floor of the Idaho House with a recommendation it passes after two different organizaitons warned the bill would add even more secrecy to carrying out the death penalty.

If passed into law, the bill would provide confidentiality to and prevent the disclosure of any person or company who “compounds, synthesizes, tests, sells, supplies, manufactures, stores, transports, procures, dispenses, or prescribes the chemicals or substances for use in an execution or that provides the medical supplies or medical equipment for the execution process.”

The bill would also block that information from being introduced as evidence or discoverable during court cases. The bill would also shield the identity of the on-site physician, and the medical and escort teams that are present during executions.

Rep. Greg Chaney, R-Caldwell, sponsored the bill, saying the makers of lethal injection chemicals won’t supply them to the state of Idaho anymore without the protection of confidentiality.

In the age of social media, Chaney said activists are finding the companies that provide lethal injection chemicals and “naming them and shaming them.”

“The problem is that currently our ability to carry out the sentence that has been imposed is impaired,” Chaney said. “It is impaired by an inability to procure the lethal injection drugs without protections provided to the identity of those who provide them.”

“The death penalty cannot move forward absent this legislation,” Chaney added.

Idaho Department of Correction Director Josh Tewalt agreed.

“As I stand in front of you, I can attest that the state does not have the material ability to carry out an execution,” Tewalt said during Thursday’s hearing. “We have been unable to secure the necessary chemicals and potential suppliers have expressed concern that the language in our administrative rule is insufficient to protect their identities.”

But the American Civil Liberties Union of Idaho and The Idaho Press Club opposed the bill, arguing the public has a right to know the information about executions carried out by the state and funded by taxpayers.

“Lethal injection is the only method of execution allowed under Idaho law, and the public has the right to know the source of lethal injections and the reputability and safety record of the drug’s suppliers,” said Lauren Bramwell, a policy strategist with ACLU of Idaho.

Idaho’s past use of lethal injection drugs comes under scrutiny

Idaho’s use of lethal injection drugs has come under scrutiny recently. Last June, Idaho death row inmate Gerald Pizzuto wrote to his prison warden and asked to be executed by firing squad instead of using the drug pentobarbital, the Idaho Statesman reported. Pizzuto argued pentobarbital would be too hard on him given his medical history and violate the prohibition on cruel and unusual punishment.

Public records and court depositions from a lawsuit filed by University of Idaho law professor Aliza Cover indicate that in May 2012 Tewalt, who was then a deputy chief with the Bureau of Prisons, took a state chartered flight to Tacoma, Washington, with up to $15,000 in cash, the Idaho Statesman and Idaho Press have reported. Tewalt and Department of Correction then-director Kevin Kempf kept the money in a suitcase and exchanged it for lethal injection chemicals from a Tacoma pharmacist during a meeting at a Walmart parking lot, records and dispositions from the Cover lawsuit indicate.

Reps. Ron Nate, R-Rexburg, and Colin Nash, D-Boise, cited reporting over that 2012 trip during Thursday’s hearing.

“I trust the government to take out my trash, I don’t trust them to kill people in secret processes,” said Nash, who voted against the bill. ”I am very uncomfortable with this idea. When I read the article that Rep. Nate was talking about — I have probably never been more embarrassed to be an Idahoan than when I found out how the government handled the last execution. I think this is embarrassing, and I don’t think our government should be in the business of carrying out executions in secret processes.”

Tewalt responded to Nate’s question about the 2012 trip during Thursday’s hearing. Tewalt said the report includes a caveat that allegations came out of a lawsuit. Tewalt also said the chemicals were lawfully obtained, verified, tested and administered in accordance with law. He also stressed that carrying out the death penalty is a solemn process, which the Department of Correction treats with care and dignity.

During the hearing, Chaney told legislators 27 states use the death penalty and 19 of those states have similar shield laws on the books.

If the Idaho House passes the bill, it would be sent to the Idaho Senate for consideration.

Disclosure: Reporter Clark Corbin and other Idaho Capital Sun reporters are members of the Idaho Press Club.

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