BOISE, Idaho — 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.

In January, Rep. Bruce Skaug, a Nampa Republican, 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.

Tewalt left his role with the Idaho prison system a year ago and was replaced by his deputy director, Bree Derrick. She has led IDOC since this past April.

Derrick told the judiciary committee last month that the IDOC director’s creation of execution procedures has historically never been up for judicial or legislative review. Skaug’s bill is designed to codify existing practice and court rulings, she said.

“I think the reason for that is not wanting folks to weigh in — you know, the public or others — to weigh in on rulemaking related to execution procedures, specifically,” Derrick said. “Really the hope here is to make explicit what the (district) court has interpreted” was the Legislature’s original intent.

The bill also includes confidentiality protections for anyone involved in an execution, specifically adding firing squad members and those who lend technical assistance during the process. Already, IDOC is exploring a remote-operated system for its firing squad as it becomes the only U.S. state with it as the lead method.

Bill reintroduced with changes

Robin Maher is an attorney and executive director of the Death Penalty Information Center, a national archive of data and information about capital punishment in the U.S. The Washington, D.C.-based nonprofit does not take a formal position on capital punishment.

Maher reviewed Skaug’s legislation, the purpose of which he has couched in extending confidentiality protections as Idaho shifts to the firing squad this summer. In an interview with the Idaho Statesman, Maher called the bill a “major change” to state law with potentially significant legal consequences in the state’s pursuit of the death penalty.

“What this legislation would do is further obscure the decision-making of officials from the public, and insulate them from any judicial review, public criticism or accountability,” she said by phone. “We know that secrecy increases the chances of a botched execution. The process where a new method of execution is adopted should be fully vetted, and officials should answer all of the questions about the protocol.”

Should the bill pass, it would likely preclude Pizzuto’s appeal with the Supreme Court from moving forward.

Skaug, a retired attorney, tweaked the language of his bill this session and reintroduced House Bill 803 last week. The attorney general’s office had no involvement in the bill, agency spokesperson Damon Sidur told the Statesman by email.

“We would be happy to provide assistance if requested,” he added.

Before winning election, Idaho Attorney General Raúl Labrador worked at Skaug’s private law firm. Labrador helped author a bill that Skaug carried in 2023 — his first year as attorney general — to make the firing squad a backup execution method in Idaho, which became law.

House Minority Leader Ilana Rubel, a Boise Democrat and attorney, raised similar concerns about Skaug’s revised legislation as she did when he first presented a version of the bill in January. She voted against it advancing to another committee hearing.

“I firmly believe in transparency,” Rubel said. “I feel like when the state is taking someone’s life, there should be more transparency — not no transparency.”

Skaug has yet to schedule a public hearing for House Bill 803 in the judiciary committee that he leads. If approved and signed into law, the legislation would take effect July 1 — also when the firing squad becomes the state’s primary execution method.

Pizzuto’s appeal is fully briefed with the Idaho Supreme Court. The date for oral arguments has yet to post on the court’s calendar.

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