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Idaho parole board recommended sparing an inmate from death row. Gov. Little denied it

A screenshot of a clemency hearing of Idaho death row inmate Gerald Pizzuto on Tuesday, Nov. 30, 2021. Attorney Bruce Livingston with a red tie, blue blazer and white shirt sits next to Pizzuto who is where a blue beanie and a white shirt while sitting in a wheelchair. Another Pizzuto team member sits next to Pizzuto and is wearing a suit and tie and a face mask.
Idaho Public Televison
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Screenshot courtesy the Idaho Statesman
Idaho death row inmate Gerald Pizzuto, center, attends his clemency hearing on Tuesday, Nov. 30, 2021. Bruce Livingston, left, one of Pizzuto’s attorneys with the nonprofit Federal Defender Services of Idaho, sits at his left, with other members of his team also on hand.

This story was republished courtesy of the Idaho Statesman.

Idaho will once again pursue executing an inmate for the first time in almost a decade.

The state’s parole board backed reducing a convicted killer’s death sentence to life in prison, but Gov. Brad Little immediately rejected their recommendation.

The Commission of Pardons and Parole announced the ruling Thursday evening on its website, ending a month of speculation over the fate of double-murderer Gerald Pizzuto. It was just the second time the state’s parole board had recommended clemency for a death row inmate since the state reinstituted capital punishment in 1977.

The seven-member board voted 4-3 in favor of recommending clemency, according to Little in a statement. Such deliberations are held behind closed doors and normally restricted from public release, per state law.

“The severity of Pizzuto’s brutal, senseless and indiscriminate killing spree strongly warrants against commutation,” Little said in the statement. “Therefore, I respectfully deny the commission’s recommendation so that the lawful and just sentences for the murders of Berta and Del (Herndon) can be fully carried out as ordered by the court.”

The parole board, meanwhile, said in a statement that it made its decision with the intention of granting mercy over Pizzuto’s failing health and declining intellectual abilities.

“This decision is not based on any doubt or question about Mr. Pizzuto’s guilt or the horrific nature of his crimes,” the parole board’s statement reads. “Mr. Pizzuto has served 35 years in prison and his physical condition, as well as the fact that he will never be released from prison, leaves him as very little threat to others.”

Once the parole board makes a recommendation for clemency, the governor has 30 days to make a decision or leave it unaddressed and maintain an inmate’s current death sentence, under state law. However, Little made his choice on the same day.

A spokesperson for the Republican governor declined to comment, pointing an Idaho Statesman reporter back to Gov. Little’s statement denying clemency to Pizzuto. A spokesperson for the Attorney General’s Office, which argued to maintain Pizzuto’s death sentence at his clemency hearing, also declined comment Thursday evening, citing ongoing litigation.

The Idaho Department of Correction offered no comment on the ruling and Little’s decision through spokesperson Jeff Ray. The parole board had no further comment beyond its statement, said Ray, who also is functioning as the board’s spokesperson on the matter of Pizzuto’s clemency.

The parole board published its ruling and Little’s decision just before close of business at 5 p.m. on Thursday ahead of a three-day weekend. Friday is the observed government holiday for New Year’s Day.

The state will likely begin preparing to again end the terminally ill prisoner’s life by lethal injection. Pizzuto also has several active appeals that his legal team filed in state and federal courts. The U.S. Supreme Court declined earlier this month to hear a case challenging Pizzuto’s fitness for capital punishment based on arguments over his diminished intellectual capacity.

Pizzuto, 65, has remained on death row for more than 35 years for the murders of Berta and Del Herndon, who were visiting a remote cabin north of McCall to prospect gold in the summer of 1985. He has avoided execution three times over that period, including in May, when a stay of execution was issued upon the granting of his clemency hearing.

Pizzuto’s health has declined rapidly in the past few years from several illnesses, including late-stage bladder cancer. He is now confined to a wheelchair and has been under hospice treatment for about two years.

Attorneys with the nonprofit Federal Defender Services of Idaho representing Pizzuto sought mercy from the state’s parole board given their client’s fading health. They also posed arguments in their petition and at the Nov. 30 clemency hearing about what they called Pizzuto’s abhorrent childhood riddled with abuse — physical as well as sexual — at the hands of his stepfather before their client himself turned to a life of violent crime.

The legal nonprofit criticized Little’s decision.

“We are devastated and heartbroken that the governor, showing no mercy whatsoever, so casually and quickly rejected the commission’s well-reasoned and thoughtful recommendation that Mr. Pizzuto deserves clemency,” Deborah Czuba, supervising attorney for the Federal Defenders’ unit that oversees death penalty cases, said in a statement. “We had hoped the governor would follow the lead of the commissioners, and commit Idaho to a higher ideal by sparing Mr. Pizzuto an unnecessary execution based on his impending natural death from terminal disease and his deteriorating mind.”

The parole board’s decision comes three weeks to the day since the nation’s last execution, when Oklahoma ended the life of a 79-year-old death row inmate on Dec. 9. The state’s parole board voted in November to recommend that Gov. Kevin Stitt spare the life of the man convicted of a 1985 murder, and convert his sentence to life in prison.

However, Oklahoma’s Republican governor declined to step in, and the U.S. Supreme Court also chose not to provide a requested last-minute stay of execution. The state has been under intense scrutiny for several botched executions, most recently including one in October when an inmate began to convulse and vomit as the lethal injection drugs were administered.

“Clemency decisions are always made against the backdrop of political realities. And the political reality is that support for the death penalty is declining across the country,” Robert Dunham, executive director of the Death Penalty Information Center, told the Statesman in an interview. The Washington, D.C.-based nonprofit takes no position on the use of capital punishment.

“As the public loses faith in the death penalty judicial process, clemency becomes the only viable mechanism to avoid gross injustices,” he added. “That has some impact on some clemency boards, and that has some impact on some governors.”

IDAHO INCLUDED IN NATIONAL DEATH ROW DEBATE

Eleven death row inmates have been executed in the U.S. this year, according to Death Penalty Information Center data, including three federal prisoners in January under the watch of Republican President Donald Trump. On July 1, after Democratic President Joe Biden took office, the Justice Department issued a moratorium on federal executions. The decision restored a prior prohibition on federal executions that ended in July 2019 during the Trump administration, with the first federal execution in 17 years taking place in July 2020.

Eight inmates, including Pizzuto, remain on Idaho death row. Following Little’s decision, Pizzuto may still wind up the first death row inmate executed by the state since summer 2012.

Richard Leavitt, 53, was the last prisoner executed in Idaho, by lethal injection in July 2012, for the 1984 murder of a 31-year-old Blackfoot woman. Eight months earlier, in November 2011, the state executed convicted triple-murderer Paul Rhoades, 54, also by lethal injection.

Prior to Rhoades’s execution, the state hadn’t put a prisoner to death in 17 years. The January 1994 execution of convicted double-murderer Keith Wells, 31, was the first time Idaho employed lethal injection after adopting it as its preferred method in 1982.

Idaho hung death row inmates before then, last doing so in 1957. Death by firing squad also remained on the books until 2009, said Jeff Ray, spokesperson for the Idaho Department of Correction. The department considered asking lawmakers to reinstate the firing squad option as recently as 2014, but the concept didn’t move forward.

STATE COMPENSATES WRONGFULLY CONVICTED

The Idaho parole board’s Thursday ruling also means Pizzuto joins Donald Paradis as the only other death row inmate to obtain a recommendation for clemency in more than four decades.

After a 3-2 vote by the parole board, before the state changed the disclosure laws, Paradis received a reduced sentence of life in prison in 1996 from then-Gov. Phil Batt. Paradis was eventually released a free man after his conviction was vacated in 2001 and five years later reached a $900,000 settlement with Kootenai County.

Also in 2001, Idaho death row inmate Charles Fain was exonerated, when DNA evidence cleared him of his 1983 murder conviction after spending nearly 18 years in prison. A decade earlier, in 1991, Fain came within a week of being executed, but was saved by a stay of execution issued by former U.S. Supreme Court Justice Sandra Day O’Connor, according to IDOC records provided to the Statesman.

Forensic evidence also was used in 2019 to exonerate Christopher Tapp, an Idaho Falls man convicted of rape and murder in 1998. He was sentenced to 30 years to life in prison, but released in 2017 after 20 years behind bars.

Tapp’s case helped inspire Idaho lawmakers earlier this year to unanimously pass the Wrongful Conviction Act. Little signed the bill into law in March.

The law compensates wrongfully convicted people with $62,000 for each year of past imprisonment, and $75,000 for each year on Idaho death row. In June, Tapp received a $1.2 million payment under the new law, while Fain took home $1.4 million from the state.