Idaho judge weighs if governor has power over commutations

BOISE (AP) — A state judge is weighing whether Idaho’s Constitution allows the governor to reject a parole board’s recommendation when it comes to commuting a death sentence — a decision that may determine if a longtime death row inmate will be executed.

2nd District Judge Jay Gaskill heard arguments in Gerald Pizzuto Jr.’s case on Thursday. Pizzuto, 66, has been on death row for more than three decades after being convicted for the July 1985 slayings of two gold prospectors at a cabin north of McCall. He was scheduled to be executed by lethal injection last year, but the Idaho Commission of Pardons and Parole agreed to grant him a clemency hearing. Late last year, the board voted four to three to recommended that Pizzuto’s sentence be changed to life in prison.

In their recommendation, the parole board cited Pizzuto’s poor health — he has terminal bladder cancer, heart disease and diabetes as well as decreased intellectual function — and said commutation would be an act of mercy.

But Idaho Gov. Brad Little rejected the recommendation and said he wouldn’t commute Pizzuto’s sentence. Little noted the man committed the Idaho slayings shortly after being released from prison in Michigan where he had been convicted of rape.

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“The severity Pizzuto’s brutal, senseless, and indiscriminate killing spree strongly warrants against commutation,” Little wrote.

Pizzuto’s attorneys with the Federal defender Services of Idaho contend that the language of the Constitution is clear — the governor can grant a temporary reprieve of the death sentence, but only the parole board can decide whether or not to commute an inmate’s death sentence, and the board’s decision is final.

But Deputy Attorney General LaMont Anderson, who represents the state, contends that the phrase “only as provided by statute” included in the relevant section of the constitution means the Legislature can adjust the commutation powers. A state law enacted by the legislature says the parole board can recommend commutation for death penalty cases, but the governor must approve the recommendation, Anderson said.

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“I don’t know how it could be any plainer, quite frankly. The power to commute a sentence is not vested in the commission — it’s vested in the Legislature,” Anderson told the judge. “‘Only as provided by statute,’ means that only the Legislature can determine what power what authority the commission or any other entity has as far as commutation in death penalty cases.”

However, the Constitution also says no commutation or pardon shall be granted except by the decision of a majority of the parole board and simply doesn’t that power to the governor, Horwitz said. Even reprieves — a temporary stall of an execution — issued by the governor are only allowed until the commission has a chance to meet and consider the matter.

There’s compelling public policy reasons that support the way the Constitution is worded, Horwitz said: Parole commissioners are appointed because of their expertise. In Pizzuto’s case, they considered a lengthy and detailed petition and reviewed a large amount of evidence from both sides.

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“The governor in contrast, took a single day … and on that day determined he would not grant clemency,” Horwitz told the court. “Those facts amply demonstrate why the framers chose to give these important decisions to professionals who specialize in these matters, rather than to officials who have to directly consider reelection consequences.”

Horwitz asked the judge not to issue a new death warrant for Pizzuto until the constitutionality of the matter is decided.

Pizzuto was camping with two other men near McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area. Prosecutors said Pizzuto, armed with a .22 caliber rifle, went to the Herndon’s cabin, tied their wrists behind their backs and bound their legs to steal their money. He bludgeoned them both, and co-defendant James Rice then shot Del Herndon in the head. Another co-defendant, Bill Odom, helped bury the bodies and all three were accused of robbing the cabin.

Court records show Pizzuto’s childhood was marred by severe and unrelenting abuse by his stepfather and his stepfather’s friends. He is one of eight people on Idaho’s death row.