Lawsuits in Arizona and Virginia Highlight Media Efforts to Witness Executions in Their Entirety

Federal law­suits filed by coali­tions of media orga­ni­za­tions in two states high­light recent media efforts to vin­di­cate the public’s right to wit­ness exe­cu­tions in their entire­ty. On September 17, 2019, the U.S. Court of Appeals for the Ninth Circuit ruled in a case brought by a coali­tion of Arizona media orga­ni­za­tions that the First Amendment right to wit­ness an exe­cu­tion encom­pass­es the right to hear the exe­cu­tion in its entire­ty. On the heels of that rul­ing, four Virginia media orga­ni­za­tions filed suit in fed­er­al dis­trict court in Richmond on September 23 seek­ing to com­pel the Virginia Department of Corrections to leave open two cur­tains that, the suit alleges, have pre­vent­ed the pub­lic from ​“observ[ing] cru­cial steps in the execution process.”

The Arizona law­suit was filed by sev­en death-row pris­on­ers and the First Amendment Coalition of Arizona fol­low­ing the botched exe­cu­tion of Joseph Wood in 2015, in which he gasped, choked, and strug­gled to breath for near­ly two hours behind a sound-proof win­dow sep­a­rat­ing wit­ness­es from the exe­cu­tion cham­ber. The appeals court ruled in favor of the peti­tion­ers that the First Amendment guar­an­teed access to sound as an essen­tial part of pub­lic over­sight of the exe­cu­tion process. Writing for the court, Judge Paul J. Watford said “[t]he his­tor­i­cal tra­di­tion of pub­lic access [to gov­ern­ment pro­ceed­ings] includes the abil­i­ty to hear the sounds of exe­cu­tions. … Execution wit­ness­es need to be able to observe and report on the entire process so that the pub­lic can deter­mine whether lethal injec­tions are fair­ly and humane­ly admin­is­tered.” Turning off the micro­phone in the exe­cu­tion cham­ber when the exe­cu­tion is under way, Watford wrote, pre­vents wit­ness­es ​“from hear­ing sounds after the inser­tion of intra­venous lines [and] means that the pub­lic will not have full infor­ma­tion regard­ing the admin­is­tra­tion of lethal-injec­tion drugs and the prisoner’s expe­ri­ence as he dies.” 

Under Arizona’s exe­cu­tion pro­to­col, exe­cu­tion wit­ness­es can view through a video mon­i­tor the pris­on­er being strapped to the exe­cu­tion gur­ney and the inser­tion of the intra­venous exe­cu­tion line. They then can observe through a win­dow the admin­is­tra­tion of the exe­cu­tion drugs. The rul­ing bars Arizona from turn­ing off the micro­phone in the exe­cu­tion cham­ber after the IV line is placed. 

The Virginia law­suit chal­lenges pro­vi­sions in the Commonwealth’s exe­cu­tion pro­to­col that delay open­ing the cur­tains to the wit­ness room until the after the IV lines have been estab­lished, pre­vent­ing wit­ness­es from observ­ing the pris­on­er being brought into the exe­cu­tion cham­ber and strapped to the gur­ney, and the inser­tion of the IV lines. The plain­tiffs allege that the state’s 2017 exe­cu­tion pro­to­col vio­lates the public’s First Amendment ​“affir­ma­tive right of access to cer­tain gov­ern­ment pro­ceed­ings, includ­ing a right to wit­ness the entire­ty of exe­cu­tions car­ried out by the gov­ern­ment.” The lim­i­ta­tions on what wit­ness­es can see dur­ing Virginia exe­cu­tions, the plain­tiffs’ say, ​“severe­ly cur­tail the public’s abil­i­ty to under­stand how those exe­cu­tions are admin­is­tered, or to assess whether a par­tic­u­lar exe­cu­tion vio­lates either the Constitution or the state’s pre­scribed exe­cu­tion pro­ce­dures, or is otherwise botched.”

Virginia’s pro­to­col was revised in 2017 to make it less trans­par­ent after the prob­lem­at­ic exe­cu­tion of Ricky Gray. Gray’s attor­neys had voiced con­cerns about the unex­plained half-hour delay in Gray’s exe­cu­tion dur­ing which exe­cu­tion per­son­nel attempt­ed to set an IV line. They said that the prison had checked Gray’s veins before the exe­cu­tion and found noth­ing to sug­gest that Gray — an oth­er­wise healthy 39-year-old man — had any prob­lems with his veins. An inde­pen­dent pathol­o­gist review­ing Gray’s autop­sy said that ​“changes described in Ricky Gray’s lungs are more often seen in the after­math of a sarin gas attack than in a rou­tine hospital autopsy.”

The Arizona court deci­sion was a mixed out­come for First Amendment advo­cates. Although grant­i­ng a right of access to the sounds of the exe­cu­tion, the court ruled that the First Amendment right of access to courts did not encom­pass the right to infor­ma­tion about exe­cu­tion drugs or exe­cu­tion per­son­nel. However, Arizona has already com­mit­ted to pro­vide some infor­ma­tion about its exe­cu­tion drugs under a pri­or par­tial set­tle­ment agree­ment in the case, and the court’s rul­ing does not affect that agreement. 

In a con­cur­ring opin­ion, Judge Marsha Berzon argued that Arizona’s secre­cy sur­round­ing its exe­cu­tion process may vio­late the death-row pris­on­ers’ First and Eighth Amendment rights. ​“I write sep­a­rate­ly to call atten­tion to the inmates’ plau­si­ble alle­ga­tions that Arizona, through its delib­er­ate con­ceal­ment of infor­ma­tion about its exe­cu­tion process, has vio­lat­ed their First Amendment right of access to the courts,” she wrote. ​“I also write to reit­er­ate my view that Arizona’s approach to devis­ing, announc­ing, and record­ing its exe­cu­tion pro­ce­dures denies con­demned inmates their right under the Fourteenth Amendment to pro­ce­dur­al due process of law.”