Botched execution of serial killer in Idaho puts focus on capital punishment secrecy laws

Last week's botched execution of a death-row inmate in Idaho showed the secrecy around capital punishment

In 2012, two Idaho prison officials chartered a private plane and flew to Washington state with thousands of dollars in cash.

They met with a pharmacist behind closed doors and bought the drug for a convicted murderer's lethal injection.

Only a years-long public records lawsuit revealed the pharmacist's name, the pharmacy and other details of the exchange. After prison officials said the pharmacist’s exposure had scared away other lethal drug suppliers, Idaho lawmakers barred such information from getting out again.

Idaho tried and failed Wednesday to execute Thomas Eugene Creech, a 73-year-old serial killer who had been in prison for 50 years. Neither his attorneys nor the public knew where the state obtained the drug or the exact qualifications of his executioners.

Opponents say secrecy laws are are a significant hurdle to accountability and make it hard to ensure that the procedures aren’t unconstitutionally painful, whether the deaths are carried out successfully — as Texas did Wednesday in the case of Ivan Cantu — or botched like Creech’s.

Idaho long kept the identities of execution team members and drug suppliers secret but judges were still able to force disclosure of the information if it was relevant to lawsuits or appeals. The new law prohibits state officials from disclosing the information, even if under court order.

The law also prevents professional licensing boards from taking disciplinary action against people for participating in executions.

Such secrecy is typical among states that impose capital punishment, including Texas, where lawmakers passed a similar measure in 2015 to ensure drug suppliers did not face retaliation or harassment for cooperating with executions.

"States are saying, ‘We don’t need to show you the information about ... how we find or drugs or the training of the prison staff,’” said Robin Maher, the executive director of the Death Penalty Information Center, a nonprofit that tracks executions. “And then, when things go wrong, they can’t be held accountable.”

Creech was convicted of five murders in three states and suspected of several more. He has been in custody since 1974 and was already serving a life term when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which he was to be executed.

When his appointed hour came at 10 a.m. Wednesday, Creech was wheeled into the execution chamber and strapped to a table. Medical personnel poked and prodded at his arms, legs, hands and feet for nearly an hour, making eight attempts, but they couldn't find a vein they thought would hold up long enough to deliver the fatal dose. He was returned to his cell.

It is unclear whether or when the state might try again, or how. Like other states concerned about the availability of lethal injection, Idaho recently passed a law allowing for firing squads as a backup, but the state has yet to write protocols for using that method or build a facility where it could shoot people to death. It has not approved the use of nitrogen gas, a method used for the first time early this year in Alabama.

Creech's execution team comprised volunteers who, according to Idaho execution protocols, were required to have at least three years of medical experience, such as having been a paramedic, and to have “current venous access proficiency.” They were not necessarily doctors, who famously take an oath to “do no harm” — though Idaho Department of Correction Director Josh Tewalt later told lawmakers that the executioners regularly use their IV skills to save lives in their day jobs. They wore white balaclava-style coverings to conceal their faces.

Tewalt defended the state's approach, saying the department ensures execution drugs are acquired lawfully, provides test results showing their authenticity, and ensures medical members of the execution team meet or exceed required qualifications.

“I would argue we are very transparent about any information that speaks to the integrity of the process,” said Tewalt. “What we won’t do is tell you their names.”

Tewalt also disagreed with characterizing the attempt as “botched” — stopping the execution after the failed IVs prevented the process from truly going awry, he said.

Creech, according to his attorneys, suffers from several conditions that could have made vein accessibility challenging: Type 2 diabetes, hypertension and edema. It can also be more difficult for older people to have IVs inserted, as their veins can be less stable.

“This is precisely the kind of mishap we warned the State and the Courts could happen when attempting to execute one of the country’s oldest death-row inmates in circumstances completely shielded in secrecy,” Creech's attorneys, with the nonprofit Federal Defender Services of Idaho, said in a written statement.

Among the arguments they made in their unsuccessful last-minute petitions to the U.S. Supreme Court was that the secrecy violated Creech's due-process rights and could constitute cruel and unusual punishment if the lethal drug, the sedative pentobarbital, was of poor quality and caused unnecessary pain or complications.

Idaho did confirm the drug would not expire until February 2025. A purchase order obtained by the Idaho Statesman showed the state spent $50,000 for 15 grams of pentobarbital — 10 grams of which were prepared for use in Creech's execution. The name of the supplier and purchase date were blacked out.

Idaho also provided what defense attorneys described as a heavily redacted certificate of analysis purporting to show the drug's validity, but they said the document lacked so much information that it was impossible to verify.

Creech’s failed execution marked the sixth time since September 2009 that an inmate has survived an attempted lethal injection because the executioners couldn’t place an IV. In the 2018 case of Doyle Lee Hamm in Alabama, executioners tried and failed for 2.5 hours; in the process they punctured his bladder and penetrated his femoral artery. Hamm died in prison three years later of cancer.

Still, failure to administer lethal injection is the exception. Over that same period, states successfully executed just over 400 people.

In Texas, condemned inmates sued in 2014 over the state's refusal to provide information about execution drug suppliers that they said they needed to verify quality. In response, lawmakers banned the disclosure of such information, saying suppliers could face harm, and the Texas Supreme Court upheld the law in 2019.

The secrecy prevents the public from fully understanding how the death penalty is administered and unnecessarily complicates legal cases, said Deborah W. Denno, founding director of the Neuroscience and Law Center at Fordham Law School.

“If you’re confident in your product, you’re going to be very open and transparent,” she said. “Usually when people are secretive, that does not mean good things.”