Judge dismisses Creech’s post-conviction claims on cruel and unusual punishment

Fourth Judicial District Judge Jason Scott dismissed a post-conviction claim Thursday from Thomas Creech, a man who survived an execution attempt and has been on death row since 1983.

After surviving an execution attempt earlier this year, Creech’s attorneys claimed that a second attempt by the state to execute him would amount to cruel and unusual punishment. Scott heard arguments on the issue last week.

During Creech’s scheduled execution in February, the medical team failed to establish an IV line in Creech — despite efforts in his hands, arms, legs and feet — before officials called off the execution. Creech is on death row for the 1981 beating death of fellow inmate David Jensen, and is linked to multiple other deaths.

In Scott’s written opinion, he dismissed the claim that a second execution attempt would violate Creech’s Fifth Amendment double jeopardy right and the Eighth Amendment right to protection from cruel and unusual punishment.

The term “double jeopardy” protects an individual from being prosecuted twice for the same crime and punished twice for the same crime.

“A second attempt to carry out his death sentence wouldn’t subject him to more than the Legislature authorized for his crime,” Scott wrote.

Scott found the Eighth Amendment claims to cruel and unusual punishment also did not have standing in this kind of appeal.

“The court doesn’t doubt that enduring one execution attempt and facing another has traumatized Creech,” Scott wrote. “Despite his heinous crimes, Creech is a human being whose suffering is worthy of consideration.”

But, Scott found that the Eighth Amendment does not categorically prohibit a second attempt at an execution. He also agreed with the state that it was not intentionally malicious during the unsuccessful execution in February.

Scott additionally found that a post-conviction appeal is only to be used as a vehicle for attacking the validity of a conviction or a sentence, not an Eighth Amendment argument. He wrote that those arguments can be challenged through other kinds of court actions.

Creech remains in the Idaho Department of Correction’s custody on death row, but did not have an active death warrant as of Thursday morning.