Final appeals pending, Thomas Creech set for Idaho’s first execution in almost 12 years

BOISE (Idaho Statesman) — The debate over the death penalty has come to Idaho for the first time in almost a dozen years.

Anti-capital punishment groups have descended across the state to protest ahead of Idaho’s first execution since 2012. Death row prisoner Thomas Creech, convicted of killing five people, is scheduled for a lethal injection Wednesday.

Demonstrations are set for the days and hours leading up to his 10 a.m. execution. On Tuesday morning, advocates against the death penalty plan to bring thousands of signatures they’ve gathered in an online petition opposing Creech’s execution to Gov. Brad Little’s office.

They’re calling on the Republican governor to stop the execution and for Idaho to abolish the death penalty.

“Thomas Creech will be the most repeated name in Idaho this week,” Abraham Bonowitz, co-founder and executive director of Death Penalty Action, said at an event held Sunday at the Cathedral of the Rockies in Boise. “If his sentence were death by incarceration, we would never hear from or about him again, and the state would not be wasting at least $1 million they’re going to spend in taxpayers’ money just to manage the unnecessary circus playing out here in Idaho.”

Little, a vocal supporter of capital punishment, has vowed not to postpone Creech’s execution any longer. Creech, 73, was first incarcerated in Idaho during President Gerald Ford’s administration, nearly a half-century ago.

“His lawful and just sentence must be carried out as ordered by the court,” Little said in a statement last month. “Justice has been delayed long enough.”

The legal nonprofit Federal Defender Services of Idaho, which represents Creech, has three active appeals filed with the U.S. Supreme Court in a last-ditch effort to prevent his execution Wednesday. They argue that Creech’s civil rights will be violated if his life is ended unnaturally and includes a request for a stay of execution.

The first appeal, which the Idaho Supreme Court unanimously rejected earlier this month, submits that Creech’s death sentence is unconstitutional because it was imposed by a judge rather than a jury. The U.S. Supreme Court ruled in 2002 that only a jury may sentence a person to death, but it’s never before been successfully argued retroactively, said Robert Dunham, a Philadelphia-based attorney who specializes in the death penalty.

“It doesn’t make sense to a member of the general public, and probably shouldn’t make sense, that we have a constitutional right but don’t have a right to have it enforced,” Dunham told the Statesman in a phone interview.

Another of Creech’s appeals alleges that his due process rights under the 14th Amendment were violated after prosecutors presented misleading information at his recent clemency hearing. They said he was guilty of killing a man in a case where he was acquitted by a jury, and that he was responsible for a 50-year-old Southern California cold case murder without offering any evidence.

Creech’s final appeal asserts that his rights under the Eighth Amendment will be violated if Idaho uses its preferred lethal injection drug, pentobarbital, to execute him. Because of preexisting health conditions, the drug — a powerful sedative that can stop a person’s breathing in higher doses — could cause severe pain and constitute cruel and unusual punishment.

U.S. District Court Judge Amanda Brailsford for the District of Idaho denied both appeals Friday. The U.S. 9th Circuit Court of Appeals affirmed Brailsford’s rulings over the weekend, and Creech’s attorneys appealed both cases to the U.S. Supreme Court.

“We are disappointed in Friday’s rulings from the court, which did not resolve serious questions about prosecutorial misconduct at Tom Creech’s clemency hearing and serious concerns about the legitimacy of the drugs the state has acquired for his execution,” Deborah A. Czuba, supervising attorney of the legal nonprofit’s unit that oversees death penalty cases, said in a statement. “We will continue to fight this vengeful, unnecessary execution of a harmless and remorseful old man who is beloved by the prison staff that will have to put him to death.”

Creech’s execution would bring Idaho back into the minority of states that carry out death sentences. Idaho is one of the 27 U.S. states with the death penalty, though six of them — Arizona, California, Ohio, Oregon, Pennsylvania and Tennessee — are under governor holds on executions, according to Washington, D.C.-based nonprofit the Death Penalty Information Center.

Since Idaho’s last execution in June 2012, five states have abolished the death penalty now for a total of 23 U.S. states without capital punishment. The federal government also has a standing moratorium in place after Democratic President Joe Biden took office in 2021.

CREECH’S CLEMENCY REQUEST REJECTED

Thomas Eugene Creech is Idaho’s longest-serving death row prisoner. He has been incarcerated since he was 24 years old following his double-murder conviction for shooting two men to death in Valley County in November 1974. At trial, he testified that he had killed 42 people, but the two victims — Edward T. Arnold, 34, and John W. Bradford, 40 — weren’t among them. His girlfriend at the time testified against him, and he was found guilty.

In May 1981, while serving a life sentence, Creech beat a fellow maximum security prisoner to death. He pleaded guilty to the murder of David Dale Jensen, 23, and a judge handed Creech a death sentence.

Creech was subsequently convicted of a murder in Oregon and another in California. He’s admitted to killing several other people and last month also was named the suspect in the cold case murder of Daniel A. Walker Jr., 21, in San Bernardino County, California, in October 1974. His attorneys dispute the allegation.

The San Bernardino County Sheriff’s Office and Ada County Prosecutor’s Office, which worked together on the new murder allegation against Creech, both directed the Idaho Statesman to the San Bernardino County District Attorney’s Office for questions. A spokesperson for the DA’s office said prosecutors continued to weigh “the pursuit of justice in this matter” and declined further comment.

San Bernardino County District Attorney Jason Anderson told the San Bernardino Sun newspaper last week that he did not intend to pursue charges against Creech for Walker’s murder because “it’s a jurisdictional issue, and we are going to let the process play out.” He added that officials would not have named Creech a suspect without the evidence he felt prosecutors needed to prove his guilt beyond a reasonable doubt.

Doug Walker, the younger brother of the victim in San Bernardino County, acknowledged that he’ll never truly know if Creech was his brother’s killer, regardless of whether he was prosecuted. He published a book last year on his brother’s unsolved cold case, titled “Daniel My Brother,” and said he’s already made his peace with the situation.

“I never went through the anger stage over the recent developments,” he said in a phone interview with the Statesman. “After processing everything the past few weeks and reading every single piece of information out there … I believe Thomas Creech murdered Danny Walker in the Mojave.”

Idaho’s parole board considered whether to drop Creech’s death sentence to life in prison at a clemency hearing earlier this year. It was just the third death row prisoner in Idaho to receive clemency review since capital punishment was reestablished in the state after a 1976 U.S. Supreme Court decision.

Creech had a broad group of supporters who advocated for him, including seven former state prison workers, one current corrections officer, a former state lawmaker, as well as the judge who had sentenced him to death. The Commission of Pardons and Parole deadlocked in a 3-3 tie, which acted as a denial under state law. The next day, the state issued a death warrant for Creech — his 12th over his decades on death row.

Creech’s remaining state and federal appeals went into overdrive. Anything less than the granting of a stay of execution in Creech’s final three appeals now before the U.S. Supreme Court and he is poised to become just the fourth prisoner executed by lethal injection in Idaho history.

The Idaho prison system used to hang death row prisoners, having done so 12 times since achieving statehood in 1890, most recently in 1957. Three men were executed by lethal injection from 1994 to present day.

Last year, Idaho approved a law that made a firing squad the state’s backup method of execution when lethal injection drugs are unavailable.

PRISON SYSTEM SAYING LITTLE ABOUT LETHAL INJECTION DRUGS

Idaho prison officials announced in October that they found lethal injection drugs for the first time in several years. The chemicals have become more difficult for state prisons to acquire because drug suppliers increasingly refuse to sell them for executions.

A purchase order obtained by the Statesman in a public records request a month later revealed that the state prison system paid $50,000 for 15 grams of pentobarbital. That cost is nearly three times the wholesale price for that amount of pentobarbital, according to a price guide on the prescription website Drugs.com.

By comparison, prison officials in 2011 paid up to $10,000 in cash to a compounding pharmacy in Salt Lake City for pentobarbital, according to a sworn deposition from a former deputy prison chief, The Salt Lake Tribune reported. That November, the drugs were used to execute Paul Rhoades, who was convicted of three 1987 murders.

In 2012, Idaho prison officials paid as much as $15,000 in cash for pentobarbital, according to public records and past court depositions. A compounding pharmacy in Tacoma, Washington, sold them the drugs used to execute Richard Leavitt, who was convicted of a July 1984 murder in Blackfoot.

Creech’s attorneys previously alleged in a lawsuit that Idaho Department of Correction Director Josh Tewalt, then a deputy chief of prisons, was one of two Idaho prison officials who bought the execution drugs in Tacoma in an evening cash exchange in a Walmart parking lot. The Tacoma compounding pharmacy involved is located across the street from the city’s only Walmart.

Tewalt was appointed in December 2018 to his director position, where he is paid $186,000 in annual salary, according to department records. He has declined interview requests from the Statesman for more than two years.

A former prison system spokesperson told the Idaho Capital Sun earlier this year in a statement, later shared with the Statesman, that the drugs used in Leavitt’s execution were purchased in accordance with all state and federal laws.

“As the state prepares for another execution, we know there will be a rehashing of the previous coverage of this topic,” the statement read. “Some of it will surely include a repetition of certain absurd and false allegations that were intended to shock and mislead, like the allegation that the chemicals used in prior executions were bought in a Walmart parking lot. Department officials deny that allegation.”

Flight records, previously obtained by the Statesman from the Idaho Division of Aeronautics in a public records request, showed that Tewalt and then-Idaho prisons director Kevin Kempf took a state-chartered round trip between Boise and Tacoma in May 2012. The Tacoma pharmacist who sold the drugs confirmed in a December 2021 statement to the Statesman the in-person delivery of pentobarbital to Idaho prison officials in May 2012.

In addition, former IDOC Director Brent Reinke, who oversaw the Rhoades and Leavitt executions, told the Statesman in a phone interview earlier this year that he recalled sending Tewalt and Kempf to Tacoma to pick up the the drugs used in the Leavitt execution. Reinke declined to discuss any other details about that lethal injection drug purchase.

Nonetheless, each of the compounding pharmacies that previously sold pentobarbital to Idaho prison officials had dubious regulatory records. Compounding pharmacies are less regulated custom drug producers that aren’t closely monitored by the U.S. Food and Drug Administration.

It is unclear where the state prison system bought the lethal injection drugs intended for use in Creech’s execution. A recent law exempts from release through public records any identifying information about the drug seller that could hinder the state’s ability to carry out executions.

“The likelihood that IDOC selected a questionable source is enhanced by its past behavior, which creates an additional risk factor,” Mary Spears, one of Creech’s attorneys, wrote in a federal court filing about alleged cruel and unusual punishment that could be inflicted upon her client. That case now sits on appeal with the U.S. Supreme Court.

Another death row prisoner represented by Creech’s attorneys in a similar case has challenged the state to confirm or deny basic facts about its purchase of pentobarbital. Prison officials acknowledged the drugs, which sit in the warden’s office, are in a liquid form, manufactured rather than made at a compounding pharmacy and already have been tested for quality, according to the court records. In addition, the drugs expire in February 2025, prisons officials said.

They also objected to answering several questions. They refused to say whether the pentobarbital prison officials bought originated from a recently folded manufacturer that recalled its products for safety reasons or possibly from a veterinarian, if they were produced in the U.S. or overseas and whether the drug source has agreed to provide them with more going forward.

Some of those answers could factor into whether the pentobarbital Idaho bought would be harmful if used to execute Creech, his attorneys argued.

“There are still troubling reasons to suspect that the state got its drugs from a disreputable source when it won’t deny that the Department of Correction went to a bankrupt company or a veterinarian or a shady supplier in China or India,” Czuba said in her statement.