Intriguing squabble in Idaho over capital commutation authority

This AP article, headlined “Judge says Idaho governor can’t veto clemency for condemned man,” reports on a new state ruling concerning who has capital commutation authority in the Gem State.  Here are some of the details:

A judge says Idaho’s governor doesn’t have the power to veto a clemency recommendation by the state’s parole board for a terminally ill man who was expected to be executed this year. The ruling from 2nd District Judge Jay Gaskill on Friday says putting Gerald Pizzuto Jr. to death would be illegal and so the court won’t issue a death warrant — a required document before an execution can occur. Gov. Brad Little’s office vowed to appeal.

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 after a clemency hearing the Idaho Commission of Pardons and Parole voted 4-3 to recommended that Pizzuto’s sentence be changed to life in prison. The 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.

Little, however, 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.

Pizzuto’s attorneys with the Federal Defender Services of Idaho went to court, with attorney Jonah Horwitz arguing last month that while Idaho’s Constitution gives the governor the power to grant temporary reprieves from execution, it stops far short of allowing the governor to override the parole board’s commutation recommendation.

Attorneys for the state had argued a phrase added by amendment in 1986 to the relevant section of the constitution, “only as provided by statute,” meant that the Legislature could modify the way commutation and parole powers are carried out. Deputy Attorney General LaMont Anderson told Gaskill during oral arguments that the Legislature had done exactly that in a state law that said the parole board could recommend commutation, but the governor must approve.

In Friday’s ruling, Gaskill said the final decision on commuting a sentence rests with the parole board and not the governor. “If the drafters intended to allow the governor to have the power of commutation, which is greater than the power to grant respites and reprieves, the drafters could have specifically stated this,” Gaskill said, pointing out that the constitutions of several other states including Texas, Oklahoma, Arizona and Pennsylvania do explicitly give commutation power to the governor.

The judge also noted that the section of Idaho’s Constitution detailing the parole and commutation powers had been amended a few times throughout the state’s history — most recently in 1986 — but none of the amendments gave full commutation authority to the governor….

In an emailed statement, the governor’s office said the decision was the ruling of “one judge,” and said Little had followed the constitution and state law as written. “Governor Little will challenge this ruling because the state must have the ability to carry out the death penalty as ordered by the court in this case,” the office said. “Pizzuto was convicted of rape, robbery and four brutally gruesome murders. This matter is now left for a higher court to ultimately decide.”

Notably, as detailed at this DPIC page, Idaho has only carried out only three executions over the last 50 years and none in nearly a decade. But, in the modern US experience with capital punishment, there always seems to be a whole lot of litigation even if when there are not that many executions.