HAILEY — Blaine County commissioners last week unofficially agreed to withdraw from a state fund that helps cover defense costs in death penalty cases. The move was an attempt to deter use of capital punishment, they said.

But just two days after the Jan. 2 meeting, each of the commissioners publicly announced that they had changed their minds. Pulling out of the Capital Crimes Defense Fund would have had the costly side effect of cutting off the county’s access to the State Appellate Public Defender’s Fund, which represents indigent defendants through all post-conviction appeals — something Commissioner Larry Schoen, who spearheaded the push, said he didn’t realize at the time.

Going forward, Schoen said, he plans to recommend that the county stay in the fund, while seeking a legislative amendment that would separate participation in the fund from access to the State Appellate Public Defender’s Office.

Though the incident likely won’t lead to any significant changes in Blaine County, the discussion and subsequent backlash from the county prosecutor and others raises questions about just how and why prosecutors decide to pursue the death penalty.

Pulling out of the Capital Crimes Defense Fund would have put the high cost of defending those facing the death penalty entirely on Blaine County — a shift that commissioners said they hoped would discourage the prosecutor’s office from pursuing the death penalty in the first place.

The death penalty, while legal in Idaho, is rare: the state has only put three people to death since 1976.

In his 22 years as Blaine County prosecuting attorney, Jim Thomas has never sought the death penalty in a murder trial. But, he said, money has never played a role in that decision. And he says if the county were to pull out of the fund, it wouldn’t have affected any future decisions.

Determining whether to pursue the death penalty is a “huge process” that involves considering the circumstances of a homicide, conversations with the family of the victim, consultations with law enforcement, and seeking advice from other experienced prosecutors, Thomas said.

“It’s probably the most important, weighty decision that I would make,” he told the Times-News. “And to think that we would make it on the basis of finances — I think that’s probably what insulted me most, frankly.”

To be eligible for the death penalty in Idaho, a case has to fit a certain set of criteria. First, the defendant must be found guilty of first-degree murder. But the case must also fit at least one factor under the legal statute governing whether the death penalty can be given.

Possible factors listed under the statute include “especially heinous, atrocious, or cruel” murders, a defendant who is seen as a continuing threat to society, and the murder of somebody working in the criminal justice system, such as a judicial officer or prosecuting attorney, for reasons related to their work.

By law, a prosecutor must be able to prove at least one of these factors beyond a reasonable doubt. But ideally, a prosecutor should be able to prove more than one of these factors, Twin Falls prosecuting attorney Grant Loebs said.

Just because a prosecutor can legally pursue the death penalty in a case doesn’t mean they will, as the legal criteria is just the beginning of the decision-making process.

Factors such as the mental health of the defendant and whether drugs, alcohol, or the bad influence of other people played a role in the crime must be taken into account, Loebs said, along with conversations with the defendant’s attorney and the wishes of the victim’s loved ones.

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In Twin Falls County, prosecutors have sought the death penalty three times since 2006, according to Loebs. None of those cases resulted in a death sentence.

Twin Falls County commissioners have never discussed withdrawing from the Capital Crimes Defense Fund, Commissioner Don Hall said, and it appears unlikely that they’ll do so anytime in the near future.

“It really is a good insurance policy we all put in, especially for the smaller counties that maybe don’t have as much of a budget to handle something like that,” Hall said.

But in the event that Twin Falls commissioners were to consider pulling out, Loebs said, their withdrawal wouldn’t have an effect on the number of death penalty cases pursued by the county.

“It’s too monumental a decision to allow things like dollars and cents to play into it,” Loebs said.

“It’s probably the most important, weighty decision that I would make. And to think that we would make it on the basis of finances — I think that’s probably what insulted me most, frankly.” Jim Thomas Blaine County prosecuting attorney
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