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Bill aims to provide anonymity for lethal injection drug companies

Death row
Posted at 3:25 AM, Feb 21, 2022
and last updated 2022-02-22 09:09:09-05

BOISE, Idaho — Idaho is one of 24 states where capital punishment is legal, but the Idaho Department of Corrections said they're currently unable to carry out the death penalty because companies that sell the drugs used for lethal injection won't sell them to the state, unless they're guaranteed anonymity.

"It's been the policy of the state of Idaho that the death penalty or capital punishment is an appropriate punishment to impose in certain circumstances," Republican Representative Greg Chaney of Caldwell said when presenting his bill to the House Judiciary Rules and Administration committee Thursday.

Josh Tewalt, the Director of the Idaho Department of Corrections also spoke in favor of the bill during the committee hearing and said the execution process is very public currently.

"Idaho execution procedures are public. Our standard operating procedure outlines precisely what is to occur, it outlines when it is to occur and how," he said. "It also includes detailed information about the substances that may be used in the execution as well as details how those are to be administered."

What proposed legislation would change

House Bill 658 would make some of this process less public, and provide confidentiality for the supply chain used to acquire lethal injection drugs.

It would provide anonymity and block the release of records containing the identity of everyone from those who sell or test the drugs, to the on-site medical and escort team.

Idaho already has an administrative rule providing anonymity for suppliers, but the director of the Idaho Department of Corrections said this isn't enough.

"Potential suppliers have expressed concern that the language in our administrative rule is insufficient to protect their identities," Tewalt said.

Supporters say this is necessary

Those in support of the bill, which includes IDOC and the Attorney General's office, said this is necessary because of anti-capital punishment activists.

"Once the identity of these suppliers is known, they are named and shamed and the one-time transaction for the chemicals is simply not worth the public relations nightmare," Chaney said.

The Associated Press reports, in recent years pharmaceutical companies have refused to sell the drugs to states if they think they will be used for that purpose.

Opponents say the public has a right to know this information

Opponents argue the public has a right to know the identities of those involved in the execution process.

"The public has a right to know the source of lethal injections and the reputability and safety record of the drug suppliers," Lauren Bramwell, the policy strategist with the ACLU of Idaho said. "The state carries out executions on behalf of Idahoans. Hindering public access to this information about the state's execution drugs means hindering the public's ability to determine if future executions will violate the eight amendment protections against cruel and unusual punishment."

The ACLU argues Idahoans also have a right to know which drugs are being used, but the sponsor of the bill, Republican Representative Greg Chaney of Caldwell said the information that really matters would be publicly available under this bill.

"What really matters is the chemical composition. And that--there's a safeguard for that and there's an opportunity to challenge that. What really matters are the credentials of those involved. And those are still discoverable, it's just not to the specific degree that would allow somebody to identify one of the individuals involved," he said. "No place does this bar the ability to discern the contents or change the requirement of the department of correction to verify the quality of the chemicals involved."

Legal questions

The bill comes with some legal questions, though.

"The question before this committee is whether the public is entitled to that specific level of information," Tewalt said.

There's no US Supreme Court decision to point to to answer questions on the legality of this bill, but constitutional law professor at the University of Idaho, Shaakirrah Sanders said there are a couple of factors at play.

"There are a number of cases where companies have said, "Our drugs can't be used for purposes of capital punishment" and yet, states have used those drugs for that purpose either way--regardless of what those companies have said. So for me, given that history, it very well may be that if this law gets passed, it will get challenged in front of the Idaho supreme court and given what the court has said in professor cover's case, I think there is a chance that this law could be ruled unconstitutional under Idaho's constitution," she said.

In 2018, University of Idaho professor Aliza Cover sued the department of corrections over a public records request.

The Idaho Supreme Court ruled that IDOC must release the records, only redacting personally-identifying information, which Cover hadn't requested.

The proposed legislation has made it out of committee with a recommendation that it pass on a 9-5 vote. The full House could debate and vote on the bill in the coming days.

We'll continue to follow the bill as the session continues.