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Idaho Supreme Court hears arguments in death penalty clemency case

A room inside the Idaho Supreme Court with multiple empty chairs and two flags.
James Dawson
Boise State Public Radio

The Idaho Supreme Court heard arguments in the state’s appeal Monday over a case that could determine who has the final say on commutations in Idaho.

In a rare decision last year, the Commission on Pardons and Parole supported a clemency request for Gerald Pizzuto Jr., who was on death row after being convicted of the 1985 murders of Berta and Del Herndon in an Idaho County cabin.

The Commission reduced Pizzuto’s death sentence to life in prison because of his health – he has terminal bladder cancer.

That same day, Gov. Brad Little rejected the Commission’s decision.

Attorneys for Pizzuto challenged the move, and a district court judge said the Governor did not have the authority to reject the Commission’s granting of clemency. Now the Idaho Office of the Attorney General and Little are appealing.

“The commission did nothing wrong in this case by making a recommendation,” Deputy Attorney General LaMont Anderson said Monday. “Gov. Little did nothing wrong by following the law that had been interpreted that way since 1986.”

During the hearing, the focus was on a section of the Idaho Constitution, which lays out who has the power to issue pardons, and in particular, a phrase that was added by an amendment in 1986.

Article IV, Section 7 of the constitution says the Commission of Pardons and Parole has the power to remit fines and forfeitures “only as provided by statute.”

Anderson, on behalf of the state, argued that the addition to the clause took commutation power away from the commission and returned it to the legislature. The state argued Idaho Code grants only a recommending power to the Commission and that the governor can approve or reject its decisions.

Pizzuto’s team, on the other hand, argued the parole commission has the sole authority to issue commutations, that the amendment did not take that power away and that the Constitution does not give the governor a say in this matter.

“The easiest way for this court to affirm would be to hold that Section 7 unambiguously confers the commutation power on the parole commission alone,” said Jonah Horwitz, an attorney representing Pizzuto.

The state wants the Idaho Supreme Court to issue a death warrant for Pizzuto; Pizzuto’s lawyers want to keep the district court’s decision in place. It’s not clear when the court will make a decision.

Find reporter Rachel Cohen on Twitter @racheld_cohen 

Copyright 2022 Boise State Public Radio

As the south-central Idaho reporter, I cover the Magic and Wood River valleys. I also enjoy writing about issues related to health and the environment.

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