‘Shady’ search for execution drugs led Idaho DOC to Tacoma pharmacy, investigation shows
Editor’s note: This story was produced in collaboration with the Idaho Capital Sun and benefited from public records grant funding through The Gumshoe Group investigative journalism initiative.
A Tacoma pharmacy played a critical role in the 2012 execution of an Idaho death row inmate, according to an investigation revealing the lengths Idaho prison officials have gone to withhold information from the public concerning their lethal-injection practices.
The documents, obtained under the Idaho Public Records Act, show how Idaho Department of Correction leadership worked to block release of details about past actions to acquire the deadly drugs, the associated taxpayer costs and the identity of their suppliers. A renewed push last year to execute death row inmate Gerald Pizzuto, who is terminally ill with cancer, prompted further scrutiny of Idaho’s history of secrecy around putting inmates to death by way of lethal injection.
Idaho prison officials continue to decline to say whether they have the lethal-injection drugs needed to execute Pizzuto, 65, or name their source for the chemicals. The department’s spokesperson has said only that when the time comes — once a death warrant is issued — the state agency is confident it will have the drugs necessary to carry out the mandated execution.
IDOC’s latest refusal last week follows nearly a decade of department efforts to prevent release of public information about its execution procedures. A series of legal defeats in recent years forced the department to disclose records that showed the covert ways that prison leadership operated to conceal information that could reveal their execution drug sources.
Court proceedings and documents judges ordered released in a public records lawsuit show that in Idaho’s last two executions — Paul Rhoades in 2011 and Richard Leavitt in 2012 — IDOC paid more than $20,000 in cash to acquire the drugs from out-of-state pharmacies in the days leading up to scheduled lethal injections. Experts on the death penalty, civil rights and pharmaceutical law have called such practices — directly involving IDOC Director Josh Tewalt — ethically suspect and potentially risky to the inmate.
The recently released trove of records shows that IDOC pursued covert tactics to obtain lethal-injection drugs from a compounding pharmacy in Salt Lake City in 2011 and another in Tacoma in 2012. The chemicals — at that time from sources not known to the public — were used over a seven-month span in the arms of death row inmates in Idaho’s last two executions: Rhoades, 54, a convicted triple-murderer, in November 2011; and Leavitt, 53, also convicted of murder, in June 2012.
Compounding pharmacies are less regulated, because they are not closely monitored by the U.S. Food and Drug Administration. The federal agency charged with approving drugs instead defers to individual states to oversee these pharmacies and the drugs they produce.
“This means that FDA does not review these drugs to evaluate their safety, effectiveness or quality before they reach patients,” the federal agency states on its website.
As a result, the pentobarbital prepared in a compounding pharmacy for executions is prone to less reliability, according to Dr. Jim Ruble, an attorney and longtime doctor of pharmacy who teaches law and ethics courses at the University of Utah’s College of Pharmacy. Factor in how the drug is handled, stored and administered after it leaves the pharmacy, and questions remain about the stability and sterility — in other words, the overall safety — of what’s injected into an inmate.
“There are profound differences between something manufactured commercially and something that a compounding pharmacy makes,” Ruble said in an interview. “Just because there’s a compounding pharmacy out there, it doesn’t mean they necessarily have all the understanding of these particular formulations. Some do, but it’s more than just prep.
“What I’m getting at is we don’t know,” he added.
Pizzuto’s attorneys with the Federal Defender Services of Idaho have made similar arguments in advocating against his execution. Given their client’s long list of serious health issues, use of such drugs stands to violate Pizzuto’s rights against cruel and unusual punishment guaranteed under the Eighth Amendment of the U.S. Constitution, they contend.
“IDOC’s history of resorting to shady drug sources for its most recent executions makes it more likely that it will happen again,” Jonah Horwitz, one of Pizzuto’s attorneys, said in a written statement to the Idaho Statesman, a McClatchy sister paper of The News Tribune. “Using drugs of questionable quality or reliability would be dangerous under any circumstances, and would pose even more of a threat to Mr. Pizzuto because of his grave heart condition and complicated medication history.”
The Tacoma pharmacy
In 2012, IDOC sought pentobarbital to execute Richard Leavitt, who was charged with killing and mutilating a 31-year-old Blackfoot, Idaho, woman. He was convicted of first-degree murder and sentenced to death in 1985.
The day before Leavitt’s death warrant was expected to be issued on May 17, an internal prison report about the execution noted to staff that IDOC had found a drug supplier.
“IDOC has a good source for the required chemicals this time, and it is anticipated we will not have the same troubles as the last execution,” the May 16 document states. The document does not address what those purported issues were, or if they involved the compounding pharmacy in Salt Lake City. IDOC officials refuse to discuss lethal-injection drugs.
Flight records obtained from the Idaho Division of Aeronautics for this investigation show that on May 30, IDOC Director Josh Tewalt and his then-boss, former IDOC prisons chief Kevin Kempf, took a state-chartered flight bound for Tacoma. They were the only passengers on the 1-hour, 51-minute trip from Boise to Tacoma Narrows Airport, arriving at 5:16 p.m., and the 1-hour, 31-minute trip back that same night, arriving in Boise at 10:19 p.m. The Division of Aeronautics estimates the round-trip flight cost Idaho taxpayers $2,448.
Tewalt, then an IDOC deputy chief of prisons, and Kempf brought with them as much as $15,000 in cash to buy the execution drugs from a Tacoma pharmacist, documents and court depositions from a 2018 public records lawsuit show. Tewalt and Kempf carried the money aboard the flight in a suitcase and made the evening exchange in a Walmart parking lot, Pizzuto’s attorneys alleged in a March 2020 legal filing.
Kempf later submitted an expense reimbursement in fiscal year 2013 for $16,383, according to records released in the public records lawsuit, which a University of Idaho law professor filed and was argued by the ACLU of Idaho. A handwritten note in blue next to the line item reads “execution” on the document, which appears to be an internal IDOC financial audit.
Kempf was promoted to IDOC director in 2014. In a September 2016 sworn affidavit obtained in the public records lawsuit concluded in March 2021, Kempf stated that IDOC last possessed pentobarbital in June 2012, for the Leavitt execution.
Kempf left IDOC two years later to become the executive director of the Correctional Leaders Association, a trade group and lobby for the nation’s member prisons. As he exited, then-Idaho Gov. Butch Otter, who was in office for the Rhoades and Leavitt executions, pronounced Dec. 16, 2016, Kevin Kempf Day in Idaho, “for his tireless work and dedication to public safety,” according to Kempf’s online professional bio.
Kempf could not be reached for comment through his trade group.
When Kempf left IDOC, Tewalt went with him, working for two years as the association’s director of operations. Tewalt returned to IDOC in December 2018 as its appointed director, while Otter was still governor.
A separate record released in the public records lawsuit links the 2012 execution drug sale to the Union Avenue Compounding Pharmacy in Tacoma, as well as to a woman who says she knows nothing of lethal injections.
The document — what appears to be a fax dated Jan. 10, 2013 — is on Union Avenue pharmacy letterhead and titled “Receipt of Monies.” It is signed by Kim Burkes, a pharmacist licensed in Washington state who owns the Tacoma compounding pharmacy. A handwritten note paper-clipped to the document also lists contact information for Burkes’ mother, Linda Hathcock.
On the front porch of Hathcock’s home, also in Tacoma, she told an Idaho Statesman reporter she had never seen the document before and didn’t know anything about the sale of execution drugs to Idaho. The only thing Hathcock said she’d done in the past for work at her daughter’s pharmacy was some light cleaning.
The lethal dose of pentobarbital acquired on that May 30 trip to Tacoma was used 13 days later to end Leavitt’s life, the public records lawsuit court depositions and documents reveal.
“The chemical has been purchased,” an internal IDOC report dated May 24 reads. “All necessary chemicals have been obtained,” a follow-up report on May 31 informs staff.
Ross Castleton, a former IDOC deputy chief of prisons, testified in his deposition during the public records lawsuit that then-deputy director Jeff Zmuda, formerly IDOC’s chief of prisons, could also speak to the cost and source of the execution drugs from 2011 and 2012.
Zmuda, now head of the Kansas Department of Corrections, did not respond to Idaho Statesman requests for an interview through his office. Kansas also maintains capital punishment and has nine inmates on death row, but it has not executed a prisoner since before 1976.
In December, inside Burkes’ pharmacy — located across the street from Tacoma’s only Walmart — she declined a reporter’s in-person interview request and later backed out of a scheduled phone interview. Instead, Burkes texted a brief statement and did not respond to follow-up requests for an interview or emailed questions.
In her written statement, Burkes, 58, confirmed she received an order from IDOC in May 2012, though did not specify which drug she sold to prison officials. She also did not say what she was paid or how the contact was initiated, or if IDOC officials have been in touch with her since.
“They provided me with the appropriate paperwork and I fulfilled the order and provided documentation of third-party quality control testing,” Burkes wrote. “I released the product to authorized Idaho DOC members … when they came to our pharmacy to retrieve it.”
In February 2017, the Washington Department of Health placed Burkes’ pharmacist’s license on probation for one year for repeat inspection violations in 2015 and 2016, according to records obtained from the state health department for this investigation. In addition, she was fined $1,432 and made to write an essay and attend training.
Union Avenue Compounding Pharmacy’s violations included stocking expired drugs on the pharmacy’s shelves and possessing insufficient patient information, the state health department records show. Burkes’ license was reinstated in 2018 — the same year Washington abolished the death penalty. It was at least the second time a licensed staffer at Burkes’ pharmacy had been placed on probation.
Washington Department of Health spokesperson Katie Pope said that in the state’s complaint-driven system, disciplinary action is rare. Over the past two years, just 35 of Washington’s 11,000 licensed pharmacists have faced such punishment.
To read the full investigation into Idaho’s death penalty practices, click here: Cash buys, private flights, changing rules: How Idaho hides from execution oversight
This story was originally published January 19, 2022 at 11:05 AM.
