Judge dismisses Idaho prisoner Thomas Creech cruel and unusual punishment claim

An Ada County judge dismissed the effort by Idaho’s longest-serving death row prisoner to prevent another attempt to execute him after prison officials failed to put him to death by lethal injection earlier this year.

Judge Jason D. Scott of Idaho’s 4th Judicial District ruled Thursday against Thomas Creech, 73, who has been incarcerated in Idaho for nearly 50 years. In his written opinion, Scott said Creech’s attorneys did not justify their claim that his constitutional rights would be violated if the state again sought to execute their client.

Attorneys with the State Appellate Public Defender’s Office said Creech, who has been convicted of three murders in Idaho, has suffered from a host of ailments after the state failed to execute him in February.

The execution was slated to be the state’s first in almost 12 years. But the prison execution team was unable to find a vein in Creech sufficient to insert an IV for lethal injection while he lay sedated and strapped down to the execution table. After an hour and eight attempts, state prison leaders called off his execution.

In the six months since, Creech has struggled with health symptoms that include sustained trauma, memory loss, delusions and recurring nightmares, his attorneys said in court filings. Serving another death warrant to Creech – what would be his 13th since 1976 – would entail cruel and unusual punishment in violation of his Eighth Amendment rights under the U.S. Constitution, they argued.

“It would constitute unnecessary and wanton infliction of pain on Mr. Creech to attempt to execute him by any method after subjecting him to the psychological torment of the botched execution,” his attorneys wrote. “Such an attempt would also represent torture and a lingering death.”

Creech is just the sixth person in U.S. history to survive an execution by lethal injection, and the first to survive one of any kind in Idaho, they noted, citing data from the Washington, D.C.-based Death Penalty Information Center. Only one of those prisoners was later put to death in a follow-up execution, earlier this year in Alabama.

“I laid on that table and fully expected to die that day,” Creech told the Idaho Statesman in phone interview from prison in June. “And actually, to be honest with you, I still feel like I’m dead and this is just the afterlife.”

Ada County prosecutors rejected Creech’s claims that the failed execution should preclude the state from fulfilling a prisoner’s standing death sentence. The U.S. Supreme Court has never ruled that a second execution attempt is unconstitutional, and Creech’s arguments were “legally and factually deficient,” they argued.

“Creech was not subjected to intentional, malicious, or unnecessary pain,” Ada County Deputy Prosecutor Dayton Reed wrote. “And he provides no evidence that any subsequent execution will inflict pain above and beyond that inherent in the execution method.”

Creech ‘traumatized’ from failed execution

A week after holding a hearing for oral arguments, Scott issued his decision that sided with prosecutors. He said a previous U.S. Supreme Court ruling did not favor Creech’s position, and that similar capital cases in other states have relied on that precedent.

Scott is the same judge who signed the death warrant for Creech that led to the attempt to execute him earlier this year.

“The court doesn’t doubt that enduring one execution attempt and facing another has traumatized Creech,” Scott wrote in his ruling. “The Eighth Amendment does not, however, categorically prohibit, as a cruel and unusual punishment, a second attempt to carry out a death sentence.”

The judge also tossed an assertion from Creech’s attorneys that a second execution attempt would violate the double jeopardy clause of the U.S. Constitution’s Fifth Amendment, because Creech would be forced to face punishment twice from a single conviction. Scott called the argument “legally untenable.”

“The court concludes without hesitation that the double jeopardy clause doesn’t bar the state from trying a second time to carry out Creech’s death sentence,” he wrote in his opinion. “Because a second attempt to carry out his death sentence wouldn’t subject him to more punishment than the legislature authorized for his crime, it wouldn’t abridge his rights under the double jeopardy clause.”

Idaho State Appellate Public Defender Erik Lehtinen declined to comment, citing a practice of not doing so on active cases. The Ada County Prosecutor’s Office also declined to comment to the Statesman.

Creech execution remains in limbo

Creech, who turns 74 next week, was first charged in Idaho in November 1974 for the shooting deaths of two men, Edward T. Arnold, 34, and John W. Bradford, 40, in Valley County. Creech admitted he killed both men in his interview with the Statesman. He received the death penalty after conviction on two counts of first-degree murder, but his sentence was reduced to life in prison.

Creech was later found guilty of the June 1974 strangling death of V. Grant Robinson, 50, in Sacramento, California, and the August 1974 shooting death of William J. Dean, 22, in Portland, Oregon. Idaho prosecutors over the years have alleged that Creech is a serial killer and responsible for as many as dozens of murders.

In May 1981, Creech, then 30, beat and stomped fellow maximum security prisoner David D. Jensen, 23, to death, according to court records. Creech pleaded guilty, was resentenced to death and has remained on death row ever since.

The state parole board members stopped a prior execution scheduled for Creech last year when they received letters of support from several former prison staff on Creech’s behalf, prompting them to grant him a clemency hearing. But his request for a reduced sentence to life in prison was denied, and Creech was served a death warrant that set up his February execution, which was unsuccessful.

After more than half a year, the Idaho Department of Correction has still not issued its plans for next steps on how to proceed with Creech – or executions overall in the state going forward.

“I think the courts are going to have a lot to say about about how the process plays itself out,” IDOC Director Josh Tewalt said in a July interview with the Statesman. “For our part, we’re in the process of going through our policies and procedures and making sure that any changes that need to be made we can get made, and be ready if we get tasked with with carrying out a death warrant.”