Idaho Supreme Court considers death row clemency case

By KEITH RIDLER
Associated Press

BOISE, Idaho (AP) — The Idaho Supreme Court on Monday heard arguments on whether the state’s constitution gives a governor the power to reject a state commission’s clemency decision for a death row inmate, but held off making a ruling.

Gerald Pizzuto Jr. has spent more than three decades on death row after being convicted for the July 1985 slayings of two gold prospectors at a cabin north of McCall. He was scheduled to be executed last year but asked for clemency due to his terminal bladder cancer, heart disease and diabetes as well as decreased intellectual function.

The state’s Commission of Pardons and Parole voted 4-3 in December to recommend to Republican Gov. Brad Little that Pizzuto’s death sentence be commuted to life in prison.

But Little rejected that decision, allowing Pizzuto’s execution to go forward.

Pizzuto’s attorneys challenged Little’s decision in state court, and a district court judge in February ruled the Idaho Constitution doesn’t give a governor the power to reject the commission’s commutation decision. Little then appealed to the Idaho Supreme Court.

Specifically, the state is asking the court to reverse the district court’s ruling and remand the case with instructions to issue a death warrant for Pizzuto.

Pizzuto’s attorneys want the justices to uphold the district court’s decision and leave the commission’s commutation decision in place.

Attorneys and justices during the hour-long hearing focused mostly on a 1986 constitutional amendment. Lawmakers in each the House and Senate approved the amendment with more than a two-thirds majority and then voters passed it with a simple majority.

The amendment was passed amid dissatisfaction with some commission decisions that some viewed as too easy on criminals, leading the Legislature to propose the amendment to rein in the commission.

Attorneys sparred over the relevant section of the amendment where lawmakers added “only as provided by statute” in pertaining to commutations and pardons, each contending it supported their argument.

Deputy Attorney General LaMont Anderson, representing the state, argued “the Legislature intended to divest the commission of any power whatsoever when it came to commutations and pardons, only as provided by statute.”

Jonah Horwitz, an attorney with the Federal Defender Services of Idaho representing Pizzuto, contended that in his plain-language argument, “the easiest way for this court to affirm would be to hold that section seven unambiguously confers the commutation power on the parole commission alone.”

That left the justices trying to decipher how that worked, and possibly even trying to determine the intent of voters who approved the amendment.

“How binding should we look upon it the fact that both sides in this case are arguing the statute is unambiguous?” asked Justice Gregory Moeller. “We have two very reasonable attorneys here making two very reasonable arguments that the statute means exactly opposite things. Doesn’t that by definition imply that we are dealing with something that is ambiguous?”

Horwitz responded that the court could hold both interpretations reasonable, and then proceed to “the analysis of the legislative history and policy.”

Justice Robyn Brody tried to get at what the Legislature intended.

“Does this constitutional provision enable the Legislature to delegate commutations powers to the governor?” she asked.

Horwitz said no, the constitution assigns the power to the commission alone.

Justice John Stegner noted that the commission itself in the Pizzuto case thought it was recommending Pizzuto’s sentence commutation to the governor, not making a final decision.

“As a district judge, I used to appreciate the fact that the decisions that I made would always be reviewed by an appellate court, and I would be told I was wrong, and I could correct that mistake,” he said. “I thought it was a recommendation. It’s a much different question if I’m actually making the decision.”

The argument is not over separation of powers as the Commission of Pardons and Parole is within the executive branch, and its members are appointed by the governor.

That led Moeller to suggest that even if justices agreed the constitution didn’t allow the governor to reject a commission’s commutation decision, it could be problematic because governors would then be inclined to only appoint commission members who agreed with them.

“I just wonder if the result of this would be a more biased commission instead of a less biased commission?” he said.

The court didn’t say when it might make a ruling.