Will Idaho Push Forward With One of the Rarest and Most Horrible Types of Executions?

The state of Idaho tried to kill Thomas Creech once. It failed. It now wants a second chance.

Last week, a state judge gave the state the green light. This decision is grotesque and is made all the more so because it masks the cruelty of a second execution behind a smoke screen of legalisms.

Creech, one of the country’s longest-serving death-row inmates, has a lengthy and troubling criminal record, having been convicted, as the Associated Press notes, of “five murders in three states and suspected of several more.” He is on Idaho’s death row because, while he was already serving a life term, he “beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981.”

Creech pleaded guilty to first-degree murder in the Jensen case. An Idaho trial judge found that he had “exhibited utter disregard for human life” and sentenced him to death.

Idaho intended to carry out that sentence months ago, Feb. 28, at 10 in the morning.

The AP reports, “The execution team was made up entirely of volunteers.” According to the story, for nearly an hour, “Thomas Eugene Creech lay strapped to a table … as medical team members poked and prodded at his arms and legs, hands and feet, trying to find a vein through which they could end his life.”

Three team members “tried eight times to establish an IV. … In some cases, they couldn’t access the vein, and in others they could but had concerns about vein quality.”

At 10:58 a.m., the prison warden told them to give up and stopped Creech’s execution. He was returned to his cell.

No state is required to carry out a second execution attempt after failing the first time. Whether Creech gets another trip to the death chamber is entirely up to the state of Idaho, which must obtain a new death warrant.

It is not the first state to have to make this choice.

Almost 80 years ago, Louisiana faced a similar choice when its effort to electrocute Willie Francis was botched. When the state announced its intention to try again, Francis went to court to attempt to stop it. His case made it all the way to the U.S. Supreme Court.

As the court recounted the relevant facts: “Francis was prepared for execution and on May 3, 1946, … was placed in the official electric chair of the State of Louisiana. … The executioner threw the switch, but, presumably because of some mechanical difficulty, death did not result.” Evidence was offered to suggest that during the botched execution, Francis had experienced extreme pain, that his “lips puffed out and he groaned and jumped so that the chair came off the floor.”

Yet Justice Stanley Reed, writing for a majority of the court, held that the first, unsuccessful execution would not “add an element of cruelty to a subsequent execution.” The constitutional question, as Reed saw it, turned instead on the behavior of those in charge of Francis’ first execution attempt.

Reed found those officials to have carried out their duties in a “careful and humane manner,” with “no suggestion of malevolence” and no “purpose to inflict unnecessary pain.” He called what happened to Francis an “unforeseeable accident … for which no man is to blame” and concluded that the state could proceed with its plan to put him to death.

Francis was executed by electric chair on May 9, 1947.

A state wanting a second chance to execute someone after a first botched attempt occurred again in 2009, when Ohio failed to kill Romell Broom by lethal injection.

The execution team was repeatedly unable to find a usable vein in his arms or groin, even as Broom tried to help them. After 18 attempts over two hours, then-Gov. Ted Strickland, a Republican, halted the execution.

Broom went to court, arguing that a second execution would constitute an additional punishment and would violate the Fifth Amendment guarantee that no one be tried or punished for the same crime twice. He also claimed that it would inflict the kind of cruelty prohibited by the Eighth Amendment.

The Ohio Supreme Court disagreed with both contentions.

Like the U.S. Supreme Court in the Francis case, it found that the members of the execution team hadn’t inflicted cruel and unusual punishment because they weren’t deliberately trying to torture Broom. The justices also concluded that a second execution would not violate the double-jeopardy clause because the lethal chemicals had not started to flow, and thus Broom’s first execution had not actually begun.

The state never got its second chance, however. Broom died from COVID-19 in 2020.

Nine years after the Broom debacle, Alabama made a different choice about what to do when its first attempt to kill Doyle Hamm had to be stopped before he died. Like Francis and Broom before him, Hamm also sued to prevent the state from trying to execute him again.

This time, instead of fighting until the end, the state settled the case and agreed not to proceed with a second execution. Hamm died of cancer in 2021.

This brings us back to Creech. He filed suit in August. According to an article in Idaho Reports, his attorneys argued that executing Creech again would amount to “psychological torture,” violating the Eighth Amendment.

Prosecutor Dayton Reed responded that it would not be cruel and usual punishment if the state were to attempt a second execution, because “there is no evidence that the first execution was malicious or intentionally painful.” Reed contended, “Creech is not entitled to a painless execution, only one that is free of purposeful cruelty.”

On Thursday, Judge Jason Scott sided with the state and dismissed Creech’s suit. Scott said that a second execution would not be a form of double jeopardy because the state “has yet to administer the legislatively authorized (and judicially ordered) punishment of death for the crime Creech committed.” A second execution “would not subject him to more punishment than the legislature authorized for his crime.”

Turning to Creech’s claim about cruelty, Scott conceded that he didn’t doubt that “enduring one execution attempt and facing another has traumatized Creech.” Despite his “heinous crimes,” Scott continued, “Creech is a human being whose suffering is worthy of consideration.”

But Scott didn’t appear to give Creech much consideration. He seemed much more interested in the intricacies of the Eighth Amendment.

That amendment does not, the judge observed, “categorically prohibit, as cruel and unusual punishment, a second attempt to carry out a death sentence.” Taking refuge in the Supreme Court’s 77-year-old decision in the Francis case, Scott deemed what had happened to Creech “a humanly conducted, though unsuccessful, execution attempt.” There was nothing in the record, he argued, to show that the failure had been intentional or malicious.

Scott went on to say that even if Creech could prove that another effort to put him to death by lethal injection would be cruel, Idaho could execute him anyway by firing squad, another authorized execution method in the state.

And again highlighting his fondness for legal technicalities, Scott found that Creech’s claims, even if they were valid, would not be “litigable in a post-conviction setting.”

So, pending an appeal, Scott gave Idaho the go-ahead to again try to kill Creech. That he would do so is a travesty of justice and an illustration of what former Judge John Noonan once described as one of the legal system’s deepest failings: its neglect of persons as “ends in themselves.”

As noted in a Harvard Law Review article discussing Noonan’s philosophy on judging, he called “for applying legal rules so that humans can respond to each other as persons worthy of love and concern rather than as mere factors in legal equations.” That is why Noonan would criticize Scott.

Noonan would find Scott’s decision to be an example of legal judgments made in a way that is “bereft of a sense of the persons they govern.” In such situations, “legal roles become distorted, rules become masks, and justice is denied.”

Giving Idaho or any other state a second chance to execute someone who has experienced what Creech has is precisely the kind of distorted, legally sanctioned injustice that Noonan warned us about.