By Kevin Fixler
The Idaho Statesman

BOISE, Idaho — Attorneys for two men on Idaho death row have challenged the state prison system’s effort to withhold the date that officials bought drugs intended for use in a future execution, asking a federal judge to step in and force disclosure of the information.

The Idaho Department of Correction revealed in October that prison officials had for the first time in years “secured” lethal injection drugs when it announced a death warrant and execution date for prisoner Thomas Creech. The lethal chemicals have become difficult for state prisons to obtain because drug suppliers increasingly refuse to provide them for executions.

Creech, 73, is the state’s longest-serving prisoner on death row. He’s been incarcerated in Idaho since 1974 and convicted for the murder of four people. Creech received his latest death sentence after murdering fellow prisoner David Dale Jensen in 1981.

Creech’s November execution was put on hold when the state parole board agreed to review whether to drop his sentence to life in prison at a hearing next month. It was at least the 11th time Creech avoided his scheduled execution, according to records provided by his attorneys.

Just two days before Creech’s most recent death warrant was issued, state officials said in a separate federal court filing involving Gerald Pizzuto that Idaho’s prison system “does not have the present ability to carry out an execution via lethal injection,” suggesting it lacked the execution drugs it needed. Creech’s attorneys with the nonprofit Federal Defender Services of Idaho also represent Pizzuto, 67, who is the state’s second-longest serving death row prisoner.

But prison officials have declined to release the date they bought the execution drugs. A purchase order for the drugs, first obtained by the Idaho Statesman through a public records request, showed IDOC paid $50,000 for 15 grams of pentobarbital, a powerful depressant that can stop a person’s breathing in higher doses.

However, the state prison system redacted the date on the document and cited several public records exemptions related to executions for withholding the information. Among them, IDOC asserted that the date could be used to help identify its execution drug supplier, which a state shield law prohibits, because doing so could jeopardize Idaho’s ability to carry out an execution. IDOC also argued that the public’s interest in confidentiality “clearly outweighs” its interest in release of the requested information.

The Statesman has continued to ask IDOC for clarifications about its application of the records exemptions to justify redacting the purchase order date, including through the newspaper’s attorney. The prison system failed to respond by a requested Thursday deadline with further explanation or the execution drug purchase order without the date redacted.

Death row prisoner attorneys want purchase date

The legal nonprofit representing Pizzuto and Creech — which later received the purchase order document on its own through the legal process known as discovery — on Friday made a formal demand that the date be released. In the filing before U.S. District Judge B. Lynn Winmill for the District of Idaho, they questioned the prison system’s rationale for redacting the information.

“They contend that such dates ‘can be used to trace the supplier of the chemical,’ ” read the court filing for Pizzuto. “Nevertheless, the defendants have never explained how, and the fear is unfounded.”

IDOC Director Josh Tewalt, who is the named defendant in the case, is represented by the Idaho attorney general’s office. Both agencies declined to comment Friday to the Statesman. IDOC cited pending litigation, while the attorney general’s spokesperson said the office would be filing its response in court soon.

In court records included in Friday’s filing, Tewalt last month said that prison officials obtained lethal injection drugs by Oct. 12 — the same day the death warrant was issued for Creech. But Tewalt, through his attorneys, objected to answering questions about whether IDOC identified its drug supplier before that date.

Tewalt’s responses also for the first time stated that IDOC has the liquid pentobarbital in its possession, that it’s a manufactured version of the drug rather than produced by a compounding pharmacy, and that it has already been tested, in accordance with state execution protocols. If not used to lethally inject Creech, the drugs could instead be used to execute Pizzuto, Tewalt acknowledged. Compounding pharmacies are less regulated, custom drug producers that aren’t closely monitored by the U.S. Food and Drug Administration.

Tewalt refused to answer whether IDOC’s drug source agreed to provide pentobarbital to Idaho for any future executions. He again cited state law that prevents release of information that may identify a supplier.

The date of the purchase order “poses no such risk,” Pizzuto’s attorneys said Friday in their court filing.

The legal nonprofit cited a U.S. Court of Appeals for the District of Columbia Circuit ruling from earlier this year to support its argument. In it, the D.C. Circuit found that the federal Bureau of Prisons had not adequately justified withholding several pieces of information, including the purchase dates, in response to a public records request concerning execution drug acquisitions.

In the Friday filing, the Federal Defender Services attorneys also referenced additional examples in Arizona and Tennessee. In the two other states that also maintain active capital punishment, both redacted identifying details, such as the company name, to avoid revealing to the public their execution drug supplier on billing records — but not the date.

“There is plainly nothing about the date of an execution-drug purchase that jeopardizes a state’s ability to put inmates to death,” Pizzuto’s attorneys wrote.

Tewalt’s legal team in the attorney general’s office has three weeks to respond, with its filing due by Jan. 5.

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