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Idaho Lowers Cloak of Darkness Over Execution Protocols

by Douglas Ankney

On March 23, 2022, Idaho Gov. Brad Little (R) signed a new law to shield the identity of drug suppliers for state executions by lethal injection.

House Bill 658 was written by the state’s Attorney General and Department of Correction (DOC). It won complete approval in the state legislature just before Little signed it. What’s behind this push for state secrecy? Most likely the fact that many firms manufacturing such drugs don’t want them used to end lives.

During a public records lawsuit in 2020, DOC was compelled to identify sources of drugs used in past executions. Documents in that suit also revealed: (1) that out-of-state compounding pharmacies with questionable safety history provided the drugs; and (2) that DOC leadership used cloak-and-dagger tactics to purchase them. In 2012, DOC Director Josh Tewalt boarded a state-chartered flight to Tacoma carrying a suitcase with $15,000 in cash, which he took to make an after-hours exchange for execution drugs in a Walmart parking lot.

Besides that shady deal, DOC also secretly purchased lethal injection drugs from a Salt Lake City compounding pharmacy in 2011. Those were then pumped into the state’s two most recently executed prisoners: Paul Rhoades in 2011 and Richard Leavitt in 2012.

Compounding pharmacies are not illegal. But they are not closely monitored by the federal Food and Drug Administration, which defers oversight to the states where they are located. So the drugs they prepare are often less reliable, according to Dr. Jim Ruble. An attorney who teaches law and ethics at the University of Utah College of Pharmacy, he explained that the quality of a compounded drug depends on how it is handled after it leaves the pharmacy. As a result, “there are profound differences between something manufactured commercially and something that a compounding pharmacy makes,” Ruble said.

One of the drugs used to kill Leavitt was bought from the Union Avenue Compounding Pharmacy in Tacoma. It sits across the street from the Walmart where Tewalt took his briefcase of cash. After repeated inspection violations, the Washington Department of Health (DOH) placed the license of operating pharmacist Kim Burkes on probation in February 2017. DOH levied a $1,432 fine and forced Burkes to write an essay and attend remedial training. According to DOH spokesperson Katie Pope, such disciplinary action is rare, meted out to only 35 of Washington’s 11,000 licensed pharmacists in the last two years.

Death-row attorney Jonah Horwitz said that DOC’s “history of resorting to shady drug sources for its most recent executions makes it more likely that it will happen again.” He added that “using drugs of questionable quality or reliability would be dangerous under any circumstances,” but especially for his client, condemned state prisoner Gerald Pizzuto, who has a “grave heart condition and complicated medication history.”

Tewalt denies any allegation of impropriety. “While that story has been widely reported,” he reminded a state House panel during testimony in early 2022, it’s just “an allegation” made as “part of a litigation.” Does that mean he didn’t really take a briefcase of cash to an out-of-state parking lot to buy drugs? “I would suggest that those chemicals were lawfully obtained, they were tested and verified through an independent third-party, and they were administered in accordance to the law,” he said.

Idaho is not alone in resorting to double-speak about execution drugs; Florida passed its own drug secrecy law in May 2022, bizarrely casting blame on death penalty opponents for “trying to interfere with [the state’s] statutory responsibility.” [See: PLN, Oct. 2022, p.28.] 

Sources: Idaho Capital Sun, Idaho Statesman, Tacoma News Tribune

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