A closer look at why it takes so long to execute someone in Idaho
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BOISE — A 12-person jury sentenced Chad Daybell to death this month, but it will be many years, maybe decades, before the Fremont County man is executed.
Nine inmates are on death row in Idaho, with Daybell being the latest addition. Thomas Creech, the longest-serving inmate on death row, was sentenced to die 41 years ago, and an attempt was made to execute him in February but was called off after medical workers could not establish an IV line.
The seven other inmates have been on death row since 1986, 1992, 1993, 1996, 2004 and 2017, with the current length of stay averaging at just over 27 years.
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The main reason for the long delay in executing inmates is due to a lengthy set of appeals, according to L. LaMont Anderson, the chief of the Idaho Attorney General’s Office Capital Litigation Unit. He has been an attorney in the division for 27 years.
“My unit is responsible for doing all the appellate work in capital cases in Idaho,” Anderson tells EastIdahoNews.com. “The appellate work from the capital arena includes appeals to the Idaho Supreme Court, the United States Supreme Court, the U.S. District Court for the state of Idaho and the 9th Circuit Court of Appeals.”
Automatic appeal and post conviction relief
The Idaho Supreme Court automatically reviews each death penalty sentence separate from any appeal that may be filed. This is not optional, cannot be waived and during this time, the death sentence is suspended.
“Capital cases are very, very different from noncapital cases,” Anderson says. “Instead of going directly to an appeal, you have post-conviction relief, and that petition has to be filed within 42 days of the entry of the judgment. In noncapital cases, you have the guilt phase, you have the sentencing phase, you have the first appeal and then after that first appeal, you go to post-conviction. But everything is consolidated in a capital case.”
According to Idaho law, “the defendant must file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known” including any claims of ineffective assistance of counsel.
The defendant is appointed appellate public defense attorneys who review everything that took place during the trial, guilt and sentencing phases.
“Although the initial petition has to be filed within 42 days after the judgment has been entered, capital defendants are permitted to amend the petition,” Anderson says. “The state public defender’s office will have to review the transcripts, the clerk’s records and all of the exhibits. In a trial of that nature, it will take several months for the court reporters to transcribe the entirety.”
Next steps
It can take years before the automatic appeal reaches the Idaho Supreme Court, where the justices can overturn the conviction or deny the appeal.
If the Idaho Supreme Court denies the appeal, the defendant can ask the United States Supreme Court to look at the case.
“In the 27 years I’ve been here, I have not had the United States Supreme Court agree to hear a single capital case,” Anderson says.
From there, should the defendant wish to continue challenging the death penalty sentence, a petition can be filed in federal district court.
“It’s basically another appeal, generally speaking, with the same things that were raised in state court allowing the federal court to review whether it’s constitutional,” Anderson says.
The process with federal district court can take years. The defendant is appointed new attorneys from the federal defenders of Idaho, who will likely file several motions, as will Anderson’s office. One federal judge will ultimately review the case.
Final appeals
If the federal district court petition is denied, the defendant can appeal to the 9th Circuit Court of Appeals, where a three-judge panel reviews the case.
“You have to do a briefing, which takes a lot of time and is quite lengthy, and then you have to have the oral argument. Then the 9th Circuit has to render a decision,” Anderson says.
If the 9th Circuit Court of Appeals rejects the case, the defendant can request the U.S. Supreme Court to consider it again.
Up to this point, the entire process can take several years. Once all appeals are exhausted, a death warrant will be sought and the execution must place within 30 days of the warrant being signed.
But appeals can still continue, as they did recently before the attempted execution of Creech.
“The appeals aren’t exhausted until there’s an actual execution. When we attempted the execution on Creech, we were writing briefs the day before that execution, and getting decisions from the United States Supreme Court the night before the execution. In capital litigation, there just never seems to be an end,” Anderson says.
Executions are rare in Idaho
During his lifetime, Anderson has only heard of one defendant waiving all appeals except for the automatic review by the Idaho Supreme Court. Keith Wells was convicted in 1990 of killing John Justad and Brandi Rains with a baseball bat in Boise for no reason other than that “it was time for them to die.”
Three years later, he asked to drop all appeals and demanded his execution proceed. Wells said he did not want to spend the rest of his life in a concrete cell, according to a report in the South Idaho Press. He was executed the next year via lethal injection.
Executions are relatively rare in Idaho, which, according to the Death Penalty Information Center, has carried out just three executions since 1976. Other states, including Texas, execute people at a much faster rate.
“I’m not particularly enamored with the idea of doing it fast. We want to do it right,” Anderson says. “We don’t want to be in a situation to be the first state in the union that executes a truly innocent man or individual.”
While Anderson wants to be careful, he also acknowledges the process is too long and does not believe it should take decades to carry out an execution.
“Tom Creech brutally murdered David Jensen in 1981, and it’s utterly ridiculous that his sentence has not been carried out. The same with Gerald Pizzuto, who committed his murders in 1985,” Anderson says. “It’s wrong for the people of the state of Idaho, who have and do continue to support the death penalty, but more importantly, it’s wrong for the victims in these cases to have to go through this for this length of time.”
