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Idaho revives bill to boost secrecy about execution drugs

March 14, 2022 GMT

BOISE, Idaho (AP) — A Senate committee chairman has revived a bill that would dramatically increase the secrecy surrounding Idaho’s execution drugs, bringing the matter back for a second vote on Monday after it failed to pass last week.

With one more member of the Senate Judiciary and Rules Committee present, the bill passed on a 5-4 vote, going to the full Senate with a “do pass” recommendation.

Last Wednesday, the legislation had died on a 4-4 tie vote. The tie-breaking vote on Monday was cast by Sen. Patti Anne Lodge, a Republican from Huston, who was absent on Wednesday.

The legislation would prohibit Idaho officials from revealing where they obtain the drugs used in lethal injections, potentially even if they are ordered to do so by the courts.

During a hearing last week, the bill drew heavy opposition from criminal defense attorneys, a retired federal judge and various organizations. They argued that capital punishment requires more government transparency, not less.

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On Monday, committee chairman Sen. Todd Lakey said he had reviewed “Mason’s Manual,” the procedural rulebook used by the Legislature, and decided that he could bring the bill back for a second vote when the full committee was present.

He said the rules show that a tie vote is a “nullity” that simply maintains the status quo. The need for a re-vote was urgent, the Republican from Nampa said, noting that the state would be fighting in court to execute two death row inmates in the near future.

“If this is an issue we’re going to address, we need to address it now,” Lakey said, so “that the death penalty can be an appropriate sentence in Idaho.”

But Sen. Melissa Wintrow, a Democrat from Boise, and Sen. Christy Zito, a Republican from Hammett, disagreed with Lakey’s interpretation of the rules. They expressed concern that about the precedent that would be set by allowing re-votes on settled matters. That could lead to repeated re-votes, slowing the Legislature’s work, they said.

“I’ve been kind of perplexed by this as well,” Zito said. “It would seem to me if we’re not careful we could set a precedence if we don’t like the way something turned out ... I have had bills myself that have had a tie vote, and that’s just it.”

During testimony last week, Idaho Department of Correction Director Josh Tewalt said potential drug suppliers want the confidentiality provisions written into state law before they will sell the drugs to Idaho’s prison officials. He said that prison officials are currently unable to obtain the chemicals they need for executions.

Tewalt also said concerns that the department might use tainted or inappropriate drugs are unfounded, contending that prison officials would decide on their own not to use any chemicals if there is a question about their suitability.

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But Ronald Bush, a retired U.S. District Court judge who has presided over cases where a condemned Idaho inmate was fighting the state’s execution policy, said the legislation puts the Eighth Amendment protections against cruel and unusual punishment and the First Amendment free speech rights of the general public at risk.

Bush said he was speaking as a private citizen, not as a representative of the courts. He said that the Idaho Department of Correction had acted “surreptitiously” in its two most recent executions.

In one case, department officials withheld information from the federal courts about the fact that they were sending a worker across state lines to purchase the lethal chemicals, using cash eight days before a scheduled execution.

The legislation narrowly passed the full House last month.