BOISE, Idaho — An Idaho death row inmate nearing his end from cancer will soon learn whether he will be killed by lethal injection, which would mark the state’s first execution in nearly a decade.
Idaho’s pardons and parole board on Tuesday will consider whether to amend the sentence of Gerald Pizzuto, convicted of murdering two people in 1985. It’s just the second time the board will hold a clemency hearing of its kind since Idaho reinstated the death penalty in the late 1970s.
In the unexpected move, the Idaho Commission of Pardons and Parole agreed in May to the hearing, where Pizzuto’s lawyers are scheduled to make a case for reducing his sentence to life in prison. The board’s decision in the spring triggered an immediate stay of execution for Pizzuto’s active death warrant issued two weeks earlier by a state district judge. The June 2 execution date was at least the third time the state had planned to end Pizzuto’s life, according to his legal team and Idaho Department of Correction records.
Pizzuto, 65, has sat on death row for 35 years. He was convicted of the July 1985 slayings of two gold prospectors at a rural Idaho County cabin in Ruby Meadows, north of McCall. Two accomplices received shorter sentences in deals to testify that Pizzuto killed the victims in the robbery. Both pleaded guilty to lesser charges and eventually were released from prison.
In recent years, Pizzuto’s health has declined sharply. He is terminally ill with late-stage bladder cancer, among other serious ailments, according to prison doctors and his attorneys with the nonprofit Federal Defender Services of Idaho. Pizzuto has now been under hospice treatment for nearly two years.
Based in part on Pizzuto’s fading health, his attorneys appealed to the state board for a hearing to consider converting his death penalty sentence to a life term. Doing so would allow him to die in prison, and also save taxpayers the elevated cost of lethal injection, they argued.
Deborah Czuba, supervising attorney for the Federal Defenders’ unit that oversees death penalty cases, said she’s grateful the commission granted a clemency hearing based on a petition that provided a variety of reasons, including Pizzuto’s childhood traumas, brain damage, mental disabilities and terminal illness.
“When considered individually, we believe each of these debilitating aspects of Mr. Pizzuto’s story could easily justify a commutation on their own,” Czuba said in a written statement to the Idaho Statesman.
Pizzuto’s attorneys will make arguments against LaMont Anderson, chief of the capital litigation unit at the Idaho Attorney General’s Office, who will represent the state. If the pardons and parole board grants Pizzuto clemency, Gov. Brad Little then must sign off on that decision.
Meanwhile, Pizzuto has several ongoing appeals in state and federal court, as well as another with the U.S. Supreme Court. These appeals are separate from the clemency process. If any of these court appeals are granted or put up for review, an execution is unlikely to proceed until that case is resolved.
One case in Idaho’s U.S. District Court argues that the state’s potential use of lethal injection drugs violates Pizzuto’s rights guaranteed under the Eighth Amendment of the U.S. Constitution, stating the drugs would cause “substantial risk of serious pain and suffering because of his health conditions and medical history.” Another federal appeal, in the event he’s still put to death, seeks to allow Pizzuto to have a spiritual adviser in the execution chamber.
In a case before the Idaho Supreme Court, Pizzuto’s attorneys filed an appeal that alleged the Idaho Department of Correction failed to provide proper notice and allow public input on lethal injection execution protocols in accordance with the federal Administrative Procedure Act. The appeal seeks to invalidate IDOC’s current execution procedures, temporarily blocking Pizzuto’s execution. It is unclear whether such a ruling might affect other potential executions in Idaho.
Finally, Pizzuto’s attorneys filed a petition to the U.S. Supreme Court that argued he should be ineligible for execution due to his diminished intellectual capacity. The nation’s highest court ruled in 2002 that putting to death someone who is mentally disabled would constitute cruel and unusual punishment.
As of Friday, the series of appeals were still active in their respective courts.
It remains unclear why the state board agreed to the clemency hearing. The board offered no rationale for its decision and has not informed Pizzuto’s legal team why it chose to grant the request.
Ashley Dowell, executive director of the Commission of Pardons and Parole, told the Statesman by email that state law allows the seven-member board to meet about clemency hearings in executive session, outside of public view. As a result, the board does not comment on those protected deliberations, she said. The board’s vote is also kept confidential, per statute.
The Idaho Attorney General’s Office and IDOC both declined to comment on the pardons board granting the hearing.
“The Commission of Pardons and Parole operates independently of the Idaho Department of Correction, and it’s not the department’s place to speculate about the possible reasons behind any commission decision,” IDOC spokesperson Jeff Ray said in an email.
In an email to the Statesman, Dowell said a ruling won’t be issued the same day as Tuesday’s hearing, but did not provide an exact timeline.
“We don’t see how anyone would think it makes sense to execute Mr. Pizzuto,” Czuba said of the mix of factors surrounding the death row inmate’s present circumstances. “His life has been traumatic from the day he was born and clearly absent of any mercy. The commissioners have the power to change that. And we hope they will and let him die naturally in prison.”
Clemencies are extraordinarily rare for inmates sentenced to death in the U.S., including in Idaho — one of 27 states maintaining capital punishment on the books. The U.S. Supreme Court reinstituted the death penalty in 1976 following a four-year hiatus. Fewer than 300 clemencies have occurred since then, according to the Washington, D.C.-based nonprofit Death Penalty Information Center, with a majority of those sentence commutations related to states doing away with the death penalty.
Ten death row inmates have been executed across the U.S. this year, while only one has received clemency. On Nov. 18, Oklahoma’s governor commuted the sentence of convicted murderer Julius Jones to life in prison without the chance of parole four hours before he was scheduled to be put to death.
That week, Oklahoma’s pardons board also recommended to the governor that another convicted murderer have his death sentence converted to life in prison. The state garnered widespread scrutiny just three weeks earlier, when an inmate the state executed vomited and convulsed as he received the lethal injection drugs.
The reasons behind why parole boards grant or deny clemency hearings are commonly a mystery, said Robert Dunham, executive director of the Death Penalty Information Center, which takes no position on the use of capital punishment.
“In most states, we don’t know why the clemency board does what it does. In a policy that is directed at taking the life of a human being, the public deserves more than that,” Dunham told the Statesman by phone. “There ought to be a statement of reasons why the board does or does not grant a hearing, and why the board does or does not recommend clemency, so that you can have public accountability.”
The only other time Idaho is believed to have held a clemency hearing for a death row inmate was in 1996, when the board reviewed the fate of convicted murderer Donald Paradis. In a 3-2 vote, the board recommended his death sentence be commuted to life in prison without the chance of parole, which then-Gov. Phil Batt went on to grant due to “some element of doubt” over whether Paradis was guilty, Batt said at that time.
Department of Correction records indicate that four scheduled executions for Paradis didn’t move forward. After serving 21 years in prison, 14 of them on death row, Paradis was granted his full release in 2001. More than 15 years later, Paradis wound up back in prison for a pair of felonies, including aggravated assault that involved the use of a gun. He was sentenced to no less than three years behind bars, but after six months he was released in May 2019 in a deal for 15 years of supervised probation.
Pizzuto’s situation is different — it’s not a case of claimed innocence and more about the question of mercy, Dunham said.
On July 25, 1985, Pizzuto and two other men, James Rice and William Odom Jr., were camping in Ruby Meadows with Odom’s wife, Lene, and their two children, according to court records.
The group spotted two gold prospectors, Berta Herndon and her nephew Del Herndon, and Pizzuto later approached them with a .22-caliber rifle to rob them. After taking money, prosecutors say Pizzuto bludgeoned the two with a hammer. Court records state that Berta Herndon died from the hammer blows, while her nephew died after he was shot in the head. Pizzuto, Odom and Rice buried the two in shallow graves.
In a 1986 interview with Idaho County investigators, Lene Odom claimed that Rice shot Del Herndon to “put him out of his misery.”
According to a transcript from Odom’s February 1986 plea hearing, Odom said Rice told him, “Please don’t tell your wife I shot the guy in the head.”
Rice and Odom Jr. accepted plea deals in 1986 and later testified against Pizzuto. Both were sentenced to prison and served 12 years each for their involvement in the crimes. Pizzuto’s attorneys told the Statesman earlier this year that Odom died in 2014 and that Rice is in a California prison on an unrelated charge.
If Idaho’s pardons board and Gov. Brad Little deny Pizzuto’s request for clemency, and a death warrant is again issued, he could be just the fourth death row inmate killed by Idaho in almost three decades.
The last time Idaho executed a prisoner was July 2012, when it ended the life of convicted murderer Richard Leavitt, 53, by lethal injection. Eight months earlier, in November 2011, the state put to death convicted triple-murderer Paul Rhoades, 54, also by lethal injection.
Pizzuto’s attorneys argue that in continuing to pursue their client’s execution, Idaho would be putting a man to death who is already terminally ill, when lethal injection drugs could cause him extensive pain and suffering. In a memorandum filed last month, the Idaho Attorney General’s Office cited a 2019 U.S. Supreme Court ruling from a Missouri case that said the Eighth Amendment “does not guarantee a prisoner a painless death.”
Dunham said the question in most executions is whether they’re necessary to do justice.
“In Mr. Pizzuto’s case, there is a different question, which is: ‘Is carrying out his execution merciless?’ ” he said. “Rather than avoiding an execution as an exercise in mercy, commuting the sentence here may be the only way for Idaho to preserve its collective humanity.”
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