A closer look at the history of the Idaho death penalty

EDITOR’S NOTE: This is the first in a two-part series on the death penalty in Idaho.

IDAHO FALLS — It’s life or death. Literally.

Samuel Newton, assistant professor of law at the University of Idaho, attempted to come up with one word that encompasses all of the feelings, legal-jargon and morality of the death penalty.

“Controversial is the first thing that comes to mind. There are different perspectives,” says Newton, who has litigated capital cases. “There are people that will say justice, there are people that will say racist. Then there are people that will say rushed, superficial, vengeance, bloodthirsty. People are not at peace or in agreement about this topic.”

The death penalty has always been a controversial issue — one heavily steeped in longstanding beliefs and opinions about whether it’s ethical or moral for a court to execute someone for a capital crime.

Idaho is one of 27 states that still have an active capital punishment law.

How the law is carried out varies from state to state. In some places, certain types of more violent executions have been banned or phased out in favor of what is seen as more humane types of execution, such as lethal injection.

Idaho only carried out executions by hanging until 1957, and then didn’t execute anyone for several decades due to legal challenges in the U.S. Supreme Court.

In 1978, Idaho introduced lethal injection as an alternate method, stating in its legislature, “The punishment of death shall be inflicted by continuous, intravenous administration of a lethal quantity of a substance or substances approved by the director of the Idaho Department of Correction until death is pronounced by a coroner or a deputy coroner.”

Lethal injection has remained the primary method of execution since then. Although there was a period of time between 1982 and 2009 when death by firing squad was legal in Idaho, no one was ever executed using that method.

However, recent struggles by the state to get lethal injection drugs have again brought executions by firing squad to the forefront of Idaho politics.

This legislative session, House Bill 186, sponsored by Rep. Bruce Skaug, R-Nampa, and Sen. Doug Ricks, R-Rexburg, passed both the House and Senate by a significant majority. The bill would establish a firing squad as the state’s backup method of execution to lethal injection.

If approved by the governor, the bill would make Idaho the fifth U.S. state to approve prisoner executions by firing squad.

Gerald Pizzuto, who was convicted of the 1985 murders of Berta Herndon and her nephew Del Herndon at a remote cabin north of McCall, has been on Idaho death row for nearly 37 years and has dodged execution multiple times, including earlier this month due in part to the state’s inability to find lethal injection drugs.

Despite the move by Idaho to allow a more violent type of execution, the National Conference of State Legislatures, shows lethal injection is still the preferred and primary method of execution in the majority of states that allow a death penalty sentence. But many of those states face legal hurdles that prevent executions from actually happening.

Oregon, California, and Pennsylvania have imposed what is called a Governor-imposed moratorium, meaning that there is a temporary suspension of executions and, more rarely, of death sentences.

States that have banned the death penalty altogether include Alaska, Connecticut, Delaware, Hawaii, Illinois, and most recently, Colorado in 2020.

The morality and ethics of the death penalty have evolved over the years

The death penalty is not something new. In fact, the American concept of capital punishment is often credited to European settlers who brought the idea to the new world and eventually incorporated it into the United States court system.

But just because it’s an old idea doesn’t mean that it’s always been a legal one.

In 1972, the Supreme Court struck down the death penalty in the Furman vs. Georgia case, stating it wasn’t constitutional and that it was impossible to distinguish which murders deserve the death penalty and which ones do not.

“States then had to come up with ways to determine who is the worst of the worst. And that is called aggravating factors,” Newton says. “It has to be a certain type of murder… It’s gotta be kind of the worst kind of murder.”

Four years later, in 1976, the Supreme Court reversed their decision and decided that capital punishment was again legal in the United States, but only under limited circumstances, according to the National Constitution Center.

It banned the ability for courts to sentence anyone to death and said death sentences can’t be characterized by “arbitrariness and capriciousness.” The ruling led to the ability for the states to determine their own aggravating and mitigating circumstances to sentence a criminal to death.

Idaho has a statute that lays out these “aggravating factors” that must be reached in order for someone to be sentenced to the death penalty.

According to the Idaho State Legislature, in order for someone to be sentenced to the death penalty, the court must ensure that, “The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.”

What murder isn’t heinous or cruel?

Since 1864, Idaho has carried out 29 executions. In fact, all three of Idaho’s first executions happened on the same day.

Three men, David Howard, Chris Lowery and Jim Romaine, were hanged at the same time for murder and burglary in Nez Perce County on March 4, 1864. Other than that, almost no details about the first set of executions in Idaho exist.

The second execution occurred on January 24, 1868, to Anthony McBride in Ada County. McBride, a 24-year-old soldier, was hanged after being convicted of the murder of a Chinese man on the Payette River.

According to the National Death Penalty Archive, McBride attempted to justify the killing by saying he was trying to shoot at an animal and accidentally shot the man.

Three doctors visited McBride before he was hanged to rule out insanity after he also tried to use that as part of his defense. This appeal did not work, and McBride was executed.

More recently, there have been prolific death penalty cases (and several narrowly avoided) in Idaho, where inmates were exonerated after proving they were innocent, a concern for some as the death penalty continues to be legal in the state.

One recent case that made national headlines and dealt with the possibility of the future of the death penalty was the State of Idaho vs. Christopher Tapp.

RELATED | Chris Tapp officially exonerated of rape and murder charges

Tapp was originally convicted of rape and murder following the 1996 death of 18-year-old Angie Dodge. Tapp was exonerated in 2017 and was cleared by DNA evidence in 2019.

Although he was never sentenced to the death penalty, Tapp was threatened with it during interviews with investigators, according to Greg Hampikian, co-director of the Idaho Innocence Project, who assisted in proving Tapp’s innocence.

“The irreversible nature of the death penalty affects not only the person who is executed but all of the people, the investigators, the witnesses, the jurors, who get it wrong,” says Hampikian. “The system is designed very efficiently to do one thing, and that convicts people who have been arrested. The conversion rate from arrest to conviction is ridiculously high. What it’s not good at doing is undoing that.”

Hampikian likens the criminal justice system in the United States to a bakery. They are really good at making cake, but once the cake is baked, you can’t un-bake it.

“It really is un-baking a cake, a lot of times, especially here in Idaho because there’s not a great history of exoneration,” says Hampikian. “We are having to find a novel approach to work, and that’s why we’ve had the very first forensic genealogy exoneration anywhere here in Idaho, in Chris Tapp’s case.”

One of the flaws in the death penalty sentencing in the United States is that much like a lot of other legal practices, it’s not fool-proof.

According to Hampikian, since 1973, at least 190 people who have been sentenced to death in the United States have been exonerated after proving their innocence.

“I have no inkling what it’s like to spend a night in prison, to be there wrongfully convicted, and to have door after door slammed in your face because everybody says you were convicted by a jury of your peers; it’s over,” says Hampikian. “That’s why the death penalty is hard because when (a defendant) dies, whether in the midst of their struggle or because the state has executed them, it is then hopeless. There is no hope of redemption. There’s nothing left.”

It’s also easy, Hampikian says, to see why someone would advocate for the death penalty, given that a need for revenge is human nature.

“They’re human feelings, and they’re not absurd. An eye for an eye, holding people accountable,” says Hampikian.

Defendants on death row are often accused of what you might call “heinous crimes,” things where people have committed the unimaginable, which is seemingly where the public’s need for revenge comes into play.

“It goes back to some really old doctrines that talk about, what is the role of criminal law? Is the role of the criminal law to deter people from committing crimes and trying to stop them before it happens?” asks Newton. “Is the role of the criminal law to set morals for society and see that these are things we won’t tolerate? Is the role to rehabilitate someone, so if someone commits a crime, we want them to get better and re-enter society? Then there’s retribution, which is you deserve it. If you commit a crime, you deserve it.”

Tomorrow, we will take a closer look at who is on death row in Idaho.