Nevada Press Association Sues State for Full Access to Witness Executions

The Nevada Press Association has filed a fed­er­al law­suit against Nevada state offi­cials and the Nevada Department of Corrections chal­leng­ing lim­i­ta­tions the state’s exe­cu­tion pro­to­col places on the media’s abil­i­ty to wit­ness and report on executions. 

In a com­plaint filed in the United States District Court for the District of Nevada on July 23, 2021, the ACLU of Nevada, rep­re­sent­ing the press asso­ci­a­tion, argued that the state’s exe­cu­tion pro­to­col vio­lates the media and the public’s First Amendment right ​“to observe and hear [an] exe­cu­tion in its entire­ty.” The com­plaint asks the court to direct Nevada to amend its exe­cu­tion pro­ce­dures so that ​“wit­ness­es will be able to observe [the con­demned pris­on­er] from the moment he enters the Execution Chamber to his death” and ​“be able to hear all sounds in the Execution Chamber from the moment [the pris­on­er] enters the Chamber until his death.”

The press asso­ci­a­tion filed the law­suit against the back­drop of Nevada’s efforts to exe­cute death-row pris­on­er Zane Floyd. Floyd’s exe­cu­tion, orig­i­nal­ly sched­uled for July 26, 2021, has been stayed while the state courts rule on a motion to dis­qual­i­fy the Clark County District Attorney’s office from the case. Clark County pros­e­cu­tors have asked the tri­al court to recon­sid­er its order grant­i­ng the stay. 

“The press are the people’s rep­re­sen­ta­tives, and you need to ensure the press has com­plete access,” Nevada Press Association exec­u­tive direc­tor Richard Karpel told the Associated Press. ​“It’s a huge deal when the state takes a life. It’s real­ly impor­tant that every­one under­stand every­thing about the process.”

Nevada’s exe­cu­tion pro­to­col calls for Floyd to be exe­cut­ed with a com­bi­na­tion of drugs that has nev­er been used before and that Floyd’s lawyers have argued would be uncon­sti­tu­tion­al­ly tor­tur­ous. ​“The peo­ple of Nevada have a right to know if the state per­forms its exe­cu­tions humane­ly, and the press has a First Amendment right and respon­si­bil­i­ty to report it,” Karpel said in a news release. The state’s exe­cu­tion pro­to­col, he said ​“is designed to lim­it what reporters can see and to pre­vent them from report­ing if some­thing goes wrong.”

Under the pro­ce­dures in Nevada’s Execution Manual, the com­plaint says, ​“Floyd’s exe­cu­tion will begin with the ​‘Execution Area Viewing Room blinds’ closed and the Viewing Room lights full[y] illu­mi­nat­ed. The blinds will only be opened after (1) Floyd enters the Execution Chamber Room, (2) Floyd is secured to the exe­cu­tion table, (3) Floyd’s IV has been con­nect­ed, and (4) the Warden is alone in the Execution Chamber with Floyd. It also sug­gests that wit­ness­es will not be able to hear any­thing inside the Chamber until after the blinds open, and even then the wit­ness­es will only hear Floyd’s last words.”

These restric­tions on media access, the com­plaint said, vio­late fed­er­al court rul­ings that grant the pub­lic a First Amendment right ​“to view exe­cu­tions in their entire­ty.” Citing a litany of mis­rep­re­sen­ta­tions by state offi­cials fol­low­ing prob­lem­at­ic exe­cu­tions with nev­er-before-used drug com­bi­na­tions, the com­plaint asserts that ​“sta­tis­tics and his­to­ry make clear that there is a high like­li­hood that Nevada, with its untried cock­tail, will botch Floyd’s exe­cu­tion. Under these cir­cum­stances,” the com­plaint argues, ​“hav­ing the press present and able to report on the exe­cu­tion, includ­ing errors, is crucial.” 

ACLU lawyer Christopher Peterson said in a state­ment, “[t]he state must not be allowed to move for­ward with an exe­cu­tion plan that allows them to hide the con­se­quences of using exper­i­men­tal drug com­bi­na­tions to kill some­one. … We’re fight­ing to make sure Nevada can’t close the cur­tain on such an event.”

The press asso­ci­a­tion law­suit also seeks an injunc­tion against Nevada’s inclu­sion of the par­a­lyt­ic drug cisatracuri­um as part of its untest­ed exe­cu­tion cock­tail. Cisatracurium, the law­suit states, ​“inhibits an inmate’s abil­i­ty to com­mu­ni­cate but does not affect an inmate’s con­scious­ness, aware­ness, pain or anx­i­ety dur­ing the exe­cu­tion.” It argues that the use of the drug ​“inevitably bur­dens” the public’s right to full infor­ma­tion about the exe­cu­tion ​“by cre­at­ing a chem­i­cal cur­tain that (1) obscures the symp­toms that the pris­on­er is suf­fer­ing from wit­ness­es and (2) pre­vents the pris­on­er from describ­ing what they are expe­ri­enc­ing. … It is includ­ed in the [exe­cu­tion] cock­tail for the sole pur­pose of obscur­ing the prisoner’s reac­tion to the drug[s] to cre­ate the illu­sion that death by lethal injec­tion is painless.”

“We should know pre­cise­ly what we are doing and what the con­demned per­son feels or expe­ri­ences,” Karpel said. ​“We should know what the state is doing in our name.”

Finally, the com­plaint seeks to block restric­tions on who may wit­ness exe­cu­tions for the media. Under Nevada’s cur­rent pro­ce­dures, the direc­tor of the Department of Corrections has unfet­tered author­i­ty to des­ig­nate which media rep­re­sen­ta­tives may wit­ness an exe­cu­tion, and the direc­tor can refuse with­out expla­na­tion to allow an oth­er­wise eli­gi­ble reporter to serve as a wit­ness. The law­suit seeks to require Nevada to adopt ​“stan­dards that the Director must fol­low in mak­ing the deci­sion,” to pro­vide ​“a writ­ten expla­na­tion as to why an invi­ta­tion [to wit­ness the exe­cu­tion] was denied,” and to pro­vide the per­son who was denied an invi­ta­tion to wit­ness the exe­cu­tion an oppor­tu­ni­ty to appeal a denial.” It also asks the fed­er­al court to require Nevada to pro­vide closed cir­cuit tele­vi­sion access to the media to oth­er­wise eli­gi­ble wit­ness who are not grant­ed access to wit­ness the exe­cu­tion in person.