Idaho court rejects post-conviction lawsuit filed by longest-serving death row inmate against second attempted execution

On September 5, 2024, Idaho's Fourth District Court denied death row inmate Thomas Creech's post-trial motion to prevent a second execution attempt, arguing that it would violate the Fifth Amendment's double jeopardy clause, the Eighth Amendment's prohibition on cruel and unusual punishment, and equivalent state constitutional provisions. The state's first attempt to execute Mr. Creech on February 28, 2024 was aborted because prison staff were unable to establish intravenous access after one hour and eight attempts.

“It would be an unnecessary and wanton infliction of pain on Mr. Creech to execute him by any method after he has endured the psychological anguish of a botched execution,” wrote lawyers for Mr. Creech, now 74. “Such an attempt would also be torture and a slow death.”

In granting the prosecution's motion to dismiss the case summarily, Fourth Circuit Judge Jason Scott stated in his decision that a second attempted execution would not violate Mr. Creech's right to protection from double jeopardy under the Fifth Amendment.[b]because a second attempt to execute his sentence of death would not inflict upon him a more severe punishment than the legislature has provided for his crime,” nor would it violate his right to protection from cruel and unusual punishment under the Eighth Amendment to the Constitution.

“The court has no doubt that Creech was traumatized by enduring one attempted execution and facing another. Despite his heinous crimes, Creech is a human being whose suffering is worthy of consideration,” wrote Fourth Circuit Judge Jason Scott. Citing the decision in Broom vs Shoop (2020), Judge Scott agreed that the precedent in Francis vs Resweber (1947), which held that a second attempted electric chair execution of a death row inmate in Louisiana did not constitute cruel or unusual punishment, was “the law of the land.”

Judge Scott then examined Mr Creech’s claim that a second attempted execution would be cruel and unusual punishment in the two ways set out in Broom. He concluded first that the state “did not intentionally or maliciously inflict unnecessary pain in the failed execution attempt.” Second, he explained that even if a second execution by lethal injection were deemed cruel and unusual, that would not prevent the state from carrying out an execution but would require it to use another method, such as a firing squad, as provided by state law. “Put another way, Creech's death sentence itself cannot be challenged as cruel and unusual punishment and is therefore not invalid even if the method of its execution could be challenged as such,” he wrote. Finally, Judge Scott concluded that since “[n]other of the failed execution attempt renders Creech's underlying death sentence implausible or invalid.” This challenge to a second attempted execution amounts to “a mere challenge to a proposed method of execution” that cannot be judicially challenged in post-conviction proceedings and serves “as a means of challenging the validity of a conviction or sentence.”

Although Judge Scott dismissed the suit, he suggested an alternative path for Mr. Creech under Idaho's Uniform Declaratory Judgment Act to file a claim that a second attempted execution would constitute cruel and unusual punishment. “Consequently, while this post-conviction proceeding is not an appropriate means of determining whether a second attempted execution of Creech by lethal injection would constitute cruel and unusual punishment, that question can be resolved in a proceeding of another nature,” he wrote.

If Mr. Creech's February 28 If the execution had been carried out successfully, it would have been Idaho's first execution in 12 years. The state currently has no executions scheduled; however, the Idaho Department of Corrections (IDOC) recently bought three doses of pentobarbital for $100,000 after the death sentence against Chad Daybell on June 1, 2024.