Ezra Paul Rhoades

As a pacifist, I’m opposed to the state taking people’s lives. I’m also opposed because of the well documented inequities in our application of the death penalty. And, yes, I’m opposed to the death penalty in my role as a journalist—I know first hand that law enforcement, judicial and political officials are not infallible and therefore not qualified to make this ultimate decision.

I am not going to rehash the many arguments for and against the death penalty in this post. But I will focus on that last point, about the fallibility of the people responsible for making the capital punishment calls. The case of Ezra Paul Rhoades in Idaho illustrates this point well—the law has enabled us to pass the buck in deciding and executing death penalty cases.

First, Rhoades was sentenced to death in 1988 by two judges, not by a jury of regular folks who would have had to wrestle with questions of conscience, in addition to questions of law. While I would hope that Judge Larry M. Boyle in Bonneville County, who handed down a death sentence for Rhoades’ murder of Susan Michelbacher and Judge J.C. Herndon who sentenced Rhoades in Bingham County for the murder of Stacy Baldwin, wrestled with their consciences, they were able to lean on state and federal law in making their judgements.

Having exhausted his appeals, Rhoades sued the Idaho Department of Correction in September, arguing that the method of execution in Idaho could potentially cause cruel and unusual punishment. What has followed has been a highly clinical discussion of the death penalty—is a three drug cocktail better than a single lethal drug—that has distracted us from the case at hand. Tomorrow, Idaho will execute a man.

The practical effect of this legal wrangling has been a passing of the buck at all levels. U.S. Magistrate Judge Ronald E. Bush considered the issue quite rationally in his Nov. 14 decision not to halt the execution, but concluded that the execution of the three-time murderer was in the best interest of the state, even though society has not resolved the uncertainty, expense and impact of the death penalty.

However, the citizens of the State of Idaho and the families of the individual victims in this case have a compelling interest in seeing that Idaho’s lawful judgments for the kidnappings and murders of Susan Michelbacher and Stacy Baldwin are enforced. Those judgments have been pending now for well over two decades while Rhoades challenged his convictions and sentences in state and federal court. There is much that has been said and written about the uncertainties and expense of death-penalty cases, and the impact that the length of time such cases place upon the families and communities of the victims, as well as the impact of such delay upon the ratio decidendi underpinning the death penalty in our society. Continued delay compounds those uncertainties, expenses, and impacts, and therefore is not in the public interest.

Then the 9th Circuit Court of appeals ruled yesterday, in clinical legalese, that Rhoades can be executed because he can’t prove his point that IDOC is not prepared to carry out the execution in a proper manner:

We conclude that Rhoades has not shown that he is entitled to injunctive relief on the merits of his claims. Because Rhoades has not shown that he is likely to succeed on the merits, which is required by Winter for injunctive relief, we need not and do not consider the district court’s remaining conclusions.

The November 15, 2011 emergency motion for a stay of execution is denied.

AFFIRMED.

But the real passing the buck comes from the politicians—the ultimate conscience in death penalty cases. The Governor, and in this case, since Governor Butch Otter has been at a posh resort in Hawaii all week, the Lieutenant Governor, are not beholden to legalistic or clinical reasons for granting clemency: they can do so because a higher power tells them to, because data on the death penalty demands it, because they feel like it. But they do not feel like it.

From the Spokesman-Review:

“It’s tough, it’s tough,” said Otter, a conservative Republican, when asked about balancing his faith and the death penalty. He’s been reluctant to discuss the matter as Idaho approaches its first execution since 1994, when murderer Keith Eugene Wells dropped his appeals and requested to be put to death…

… Otter told The Spokesman-Review this week, “I support the death penalty,” adding that it’s an issue he’s given a lot of thought to “all my life.”

“I think that as our criminal justice system … suggests, people have to be held responsible, and sometimes it’s to the max, and this is one of those cases,” Otter said. “They have to be held accountable for their actions.”

And Lt. Gov. Brad Little is not engaged, despite his deputization to become engaged:

Little said he hasn’t even read the letters and emails that continued to come in to the Capitol regarding the execution this week, leaving them instead for Otter on his return. “I guess I could go ask for ‘em if I wanted to, but I have chosen not to do that,” Little said.

The lieutenant governor cited two reasons for not wading into the issue: His role as lieutenant governor, and the circumstances of the Rhoades case.

“I mean, the Constitution says you have all the rights and powers of the governor when the governor’s out of state, but you know what? The governor comes back,” Little said.

But the worst part is that now the state is enabling us, the Idaho public and indeed American public to pass the buck, by banning witnesses at part of the execution:

Prison officials say to maintain Rhoades’ dignity, they won’t allow witnesses to view him being restrained or having the IVs inserted. They also said changing the procedure now could be disruptive.
But a group of Idaho news organizations say that policy conflicts with a 2002 federal court ruling that found the public, through the media, must be allowed to view executions in their entirety. The news organizations have asked the state to reconsider.

In the end, we all empowered the police, the judges, the governor and the lieutenant governor to make the decisions they made and we must take responsiblity tomorrow when Rhoades is executed. The only way most of us will do that is through a public witness like a brave reporter who is willing to document the event for us. I plan to be present at the execution as well, standing outside the prison gates while a man is put to death inside. I’m not reporting on it; I just feel a need to be there. I suggest that everyone—whether you support of oppose the death penalty, whether you feel it is justified in this case or not—be present tomorrow morning in some way. The bucks stops with each of us tomorrow morning.

This “Idaho First” law has not been enforced in recent memory, and a bill now before the Legislature aims to exempt the largest building project in the state – the restoration and expansion of the Capitol – from the requirement.

The major contractor on the job is basing his final price on passage of the bill, but some Idaho labor unions are asking lawmakers why they would want to outsource the work.
“When you have the highest profile project in the state and you can’t maintain a commitment to hire local people to work on it something is very wrong,” said John Littel, political director for the Pacific Northwest Regional Council of Carpenters.

In addition, the Depression-era law is included in state contracts, but not enforced and the Department of Public Works has no way of accounting for who is working on the job site.
“Nobody’s trying to suggest in any way that we ought not to be using Idaho workers, but we need to open the field up so we get some workers… or more competitive bids,” said Tim Mason, administrator of Public Works.

Work on two new underground wings and an $80 million restoration of the old Capitol began as last year’s Legislature left town. So far, foundations have been poured on the wings and the restoration of the historic Statehouse has mainly involved a careful demolition.
But contractors say they are having a tough time finding the right workers in Idaho to get the job done.

“Idaho does not have some of the trades required to do the work,” said John Emery, senior project manager for Jacobsen Hunt, the joint venture that is managing the Capitol renovation.
There are some technical jobs required by the restoration project. Chief among them is the scagliola, a faux marbling on the columns in the old building, with a $2 million price tag.
Jacobsen Hunt would also like to be able to use out-of-state contractors for some metal and finish work, Emery said, though there may be local companies capable of doing the work.

“In some cases the Idaho contractors are just taking advantage of the law,” he said.
An Idaho marble contractor bid $750,000 higher for marble work on the project, he said.
Idaho firms are doing the mechanical and electrical work already, Emery said.

The bill would exempt the Capitol construction project from the Idaho First law until 2010 and would be retroactive to last year. It passed the House with six Democrats objecting and is now awaiting a continued hearing in the Senate State Affairs Committee.

Boise Rep. Les Bock opposed the bill, arguing that law makers would have to go home and explain, “why we passed a bill that permitted the construction of the People’s house with workers from other states.”

Title 44 of Idaho code deals with labor laws. In the 1890s it was enacted to keep foreign workers off of state projects. Then after the Depression the Idaho First law and a provision to require that state building projects pay prevailing county wages were added. In 1985 the Legislature revisited the law, striking the prevailing wage part.

The Senate State Affairs Committee questioned whether or not the bill, by repealing the entire chapter would allow undocumented workers on the project.

Last year the same committee allowed Public Works to hire a Construction Manager at Risk, another exemption of Idaho code carved out specifically for the project. That means that Jacobsen Hunt, a partnership of two large out-of-state construction companies, is subbing out all of the work, rather than the state. And short of “job sheets” which indicate how many workers are on the job each day, the state is not monitoring the detailed subcontracting enough to even know where the workers are from.

Jacobsen Construction is a Salt Lake City-based company that worked on the Utah Legislature and has built many Mormon temples in the U.S. and Mexico. Hunt Construction Group is based in Scottsdale, AZ and has offices across the U.S.

So far, Emery said he is in compliance with the law, though it is impossible to know for sure. Some workers are hired through a local temp agency office, Labor Ready, and Emery said that even some of those workers are coming in from other states for the work.

Public Works chief Mason said it up to local police to enforce the Idaho First law, a violation of which is a misdemeanor. A Boise police spokeswoman said there was no record of any prosecutions in the city and that a code for the violation does not even exist in their computers.

It is also unclear whether the 95 percent Idaho worker provision applies on a daily basis or over the length of the entire project.

Mason told the Senate committee Wednesday that passage of the exemption is needed as soon as possible. Some of the bids have been delayed and Jacobsen Hunt is withholding a final maximum price for the project until passage of the bill.

Still, Senators asked that the debate continue Friday to get more answers on the application of the bill and particularly on the use of undocumented labor. Sen. Bart Davis, R-Idaho Falls asked why the Idaho First law couldn’t be repealed permanently for all state projects.

In North Idaho contractors regularly make use of crews from Spokane.

No one has testified against the bill, including the unions. A representative of the carpenters union showed up late Wednesday and Dave Whaley, head of the state AFL-CIO said by phone that the Idaho First law is fair and is a law that should be enforced.

“I’d like to see them try and keep the work here,” Whaley said, though he voiced no opposition in the House committee hearing.

Mason and others pushing for passage of the repeal have repeatedly called the Idaho First law outdated. There are many old or un-enforced laws on the books, including laws against fornication. The repeal of an old law barring sales of liquor on Election Days is currently making its way through the Legislature.

“We probably have too many laws on the books that aren’t being enforced,” said Nampa Rep. Steven Kren, who was asked to carry the bill through the House.

Kren, an electrical contractor who voted against funding the Capitol renovation last year, agreed that state jobs should hire Idaho workers. But he said if the bill does one thing it’s this: “I’m satisfied that they’re trying to accomplish one thing that that’s to keep the Capitol on schedule.”

The Idaho police cadets who chose a revealingly adolescent class slogan made a brief hit on Fox News with Brit Hume and TV news across the state. Russell. Spokesman.

Caldwell real estate broker and Iraq and Afghanistan vet Scott Syme will run against Risch and Rammell and Kent Marmon (news to PaleoMedia as well) for the GOP primary on Larry Craig’s soon-to-be-open Senate seat. Syme: “Politicians with little or no military knowledge have meddled in this war and poor decisions have been made which have cost American lives and American dollars.” Not clear which politicians he is referring to… Murrant. IPT.

And Craig tops Spears, Don Imus and Bill Belichick on list of naughtiest Americans. Meyer. IPT.

South Idaho Press has a purple map of Idaho?

Best lead: “The Hailey City Council will scratch its collective head a little longer over three sticky marijuana initiatives approved by voters in November.” This, after AG’s office throws out three reasons the initiative may be illegal. Smith. Mountain-Express.

284 state employees make more than Gov. Otter… and he’s OK with that. Pundit Jim Weatherby: “It says something about the impact of football, and winning a major bowl game.” Russell. Spokesman.

Eskridge wants “smart licenses” for Idahoans going to Canada. Eskridge: “Our relationship with Canada is unique – it’s a friendly relationship, it’s a stable relationship, we’ve got friends and relatives across the border.” Russell. Spokesman.

Report: Idaho not spending enough on tobacco prevention. State spends less than 2 percent of tobacco tax money and tobacco settlement funds on prevention, according to the Campaign for Tobacco-Free Kids. Poppino. Times-News. Clickable US map.

In the blogs: Two Idaho papers apologize for running lame, regurgitated and scandalous letters defaming Obama. Red State Rebels.

State lawmakers to look at siting of transitional homes. “It’s difficult to get a straight answer on how people interpret the Fair Housing Act,” Idaho Department of Correction Director Brent Reinke said. Kristin Rodine. Idaho Statesman.

State lawmakers to look at urban renewal. Kathleen Sims: “There’s no blight in Coeur d’Alene and I would welcome anyone to come and try to find some.” Lora Volkert. Idaho Business Review.

Rep. Bill Sali proposed 16 amendment to mining reform bill. None stick. Betsy Z. Russell. Spokesman-Review.

High court sued on schools suit decision. Stan Kress: “We’ve got some malpractice going on in the Legislature.” Betsy Z. Russell. Spokesman Review.

Crapo supporting health care reform bill that requires Americans to get insurance. Nate Poppino. Times-News.

Ag department teaches new way to count cows in CAFOs. Sven Berg. South Idaho Press.

Ed Bangs: Idaho wolf management plan will end up in court. Matt Christensen. Times-News.

Boise State history prof Nicholas Miller testified in Bosnia war crimes tribunal. Tabitha Keily says he’s “fair and balanced” in the Boise State Arbiter.

Boise mobile home parks being sold for development, Boise State report shows. Tabitha Kiely. Arbiter.

State Journal reporter Dan Boyd wins national award for his series on Peruvian sheep herders. No link to series.

Idaho has a Poet of the Year in Kathryn Hamshar. Terri Ivie. Priest River Times.

Mt. Baldy skiing opened this weekend. Greg Moore. Mtn. Express.