BOISE, Idaho — In the weeks leading up to what was expected to be a second attempt to execute Idaho’s longest-serving death row prisoner, state prison officials found they had a problem: Their lethal injection drugs expired.
Already difficult to acquire for use in executions, the drugs are costly, too. Idaho paid $100,000 in state funds for the batch of pentobarbital, according to public records obtained by the Idaho Statesman earlier this year.
Just a week after prisoner Thomas Creech was served another death warrant, the Idaho Department of Correction learned it no longer had enough of the powerful sedative it needed on hand to put him to death. Prison officials expended the majority of their prior stock of lethal injection drugs in February when they called off Creech’s execution because they couldn’t find a suitable vein for an IV, but had already drawn the chemical into syringes for use. The spent drugs cost taxpayers more than $33,000.
Creech, 74, has been incarcerated in Idaho for more than 50 years, most of it on death row for three murder convictions in the state. The second attempt to execute him planned for Nov. 13 was delayed when a federal judge issued a stay in one of his appeals to prevent the state from fulfilling his death sentence.
However, the short stock of lethal injection drugs reveals that IDOC officials were not as prepared as they thought to carry out the state’s first execution in more than 12 years, Creech’s attorneys wrote in federal court filings this month. IDOC officials were forced to scramble to come up with a solution to avoid putting off Creech’s execution once again, this time by their own doing.
“Faced with the loss of the new execution drugs through their own carelessness, and saddled also with a death warrant it had to carry out lest it face another embarrassing preliminary injunction order … the state had to come up with a plan on the fly,” Creech’s attorneys with the Federal Defender Services of Idaho wrote.
Reimbursement for expired drugs unclear
Idaho’s execution shield law narrowed what the prison system must disclose about its lethal injection drugs to members of death row and the public. But of the limited information it was compelled to provide to Creech, some key details from its latest pentobarbital purchase turned out to be untrue, his attorneys asserted in the court filings while pointing to internal prison records.
The drugs intended to execute Creech did not, in fact, have an expiration date in 2025, as Josh Tewalt, the state’s prisons director, had earlier sworn under penalty of perjury, Creech’s attorneys wrote. Contrary to what they said under oath in court filings this summer, IDOC leaders also didn’t have a certificate of analysis to prove the drugs had been tested properly, the filings read. The testing would have affirmed the injection was potent and safe enough to end a person’s life without causing what could be construed as cruel and unusual punishment.
“This failure was entirely within the state’s control,” Creech’s attorneys wrote. “As anyone who has ever taken medication knows, and as (Director) Tewalt admitted … a simple glance at a manufactured drug’s packaging will tell you when it expires. But no one acting on behalf of the state of Idaho and charged with carrying out its most profound and solemn duty ever bothered to do so much as look once at the execution chemicals.”
Idaho Attorney General Raúl Labrador, whose office is tasked with defending IDOC and its leadership in the lawsuit, did not respond to requests for comment. The deputy attorneys general handling the case have yet to respond to the merits of the court filings that alleged the drugs expired.
Included in the court filings from Creech’s attorneys was a chain-of-custody form for IDOC’s lethal injection drugs that showed Randy Valley, warden of the maximum security prison south of Boise, transferred the $100,000 worth of pentobarbital out of his possession on Oct. 24 — less than three weeks before Creech’s scheduled execution. “Expired returned to supplier,” the log entry read.
The log also showed that Valley accepted a new batch of pentobarbital the next day. An invoice for the purchase, included in court filings by Creech’s attorneys, showed the 15 grams of pentobarbital cost $50,000.
IDOC failed to meet the requirements of the Idaho Public Records Act when it did not respond to a request from the Statesman for the same invoice for pentobarbital, so the purchase could be verified. The state law provides up to 10 business days for public agencies to respond with requested public records, and that deadline lapsed Wednesday.
The going retail rate of 15 grams of pentobarbital is about $16,200, a doctor of pharmacy said in a sworn declaration submitted to the court by Creech’s attorneys. The state paid about three times that amount for its latest batch of the drug.
It is also unclear whether the prison system was reimbursed $100,000 by the unnamed supplier for the expired batch of drugs, which Creech’s attorneys said the state bought as early as April. IDOC provided the Statesman with the purchase invoice in response to a public records request. IDOC declined to comment Thursday after the Statesman asked questions about the drugs and their costs.
The Department of Correction is an executive branch office that falls under the supervision of Gov. Brad Little. His office also did not respond to questions from the Statesman about the lethal injection costs and expiration of drugs intended for Creech’s planned execution this month before it was postponed.
“Gov. Little has made clear his support of capital punishment,” Joan Varsek, Little’s spokesperson, told the Statesman in an emailed statement last month. “As the chief executive of state government, Gov. Little’s job is to follow the law and ensure lawful criminal sentences are carried out.”
Additional execution costs rack up
Last month, IDOC announced it revised its execution policies and renovated its execution chamber — almost eight months after the prison system was unable to execute Creech. State officials indicated they hoped the changes would prevent a repeat of the first failed execution in Idaho history.
An “execution preparation room” was constructed, so the execution team can assess a prisoner’s veins before delivering them to the chamber. IDOC also added cameras for a live closed-circuit broadcast so witnesses can see what happens in that new room to meet federal execution transparency requirements.
Instead of a standard IV, known as peripheral access, the execution team, assisted by a volunteer “qualified physician,” will now be trained to insert a central line IV with a catheter through a jugular in the neck, or vein in the upper thigh or chest. The American Medical Association strictly prohibits members from participating in an execution in any form.
“Every IDOC staff member and execution-related team member participates voluntarily,” Sanda Kuzeta-Cerimagic, IDOC’s spokesperson, previously told the Statesman. “Our experience is that most people volunteer out of a sense of duty and a belief that this process should be dignified.”
For design and construction, the renovation costs totaled $314,000, Kuzeta-Cerimagic said. Little signed a bill into law last year to add a firing squad as the state’s backup execution method and provided $750,000 to remodel the execution chamber.
“Execution by lethal injection remains the primary means of capital punishment in the state of Idaho,” Varsek said last month. “The improvements to the execution procedures help ensure the state of Idaho can carry out just sentences as ordered by the court.”
Future construction to accommodate a firing squad execution will cost an additional $953,000, Kuzeta-Cerimagic said. About $436,000 remains in IDOC’s building fund from the firing squad law, which would require another half-million dollars appropriated to complete that work.
“We’re trying to work as quickly as possible to have that be an option while also maintaining our ability to carry out capital punishment by lethal injection,” Tewalt said in a July interview with the Statesman.
Lethal drugs, including pentobarbital, became harder to come by after manufacturers increasingly chose to no longer sell them to prisons for executions. But the state in 2022 passed its shield law, which protects any identifying information of execution team members and suppliers of execution drugs from public release. Since then, lethal injection drugs have been more available to the state, according to prison officials.
“For right now,” Tewalt said.
