New Resource: In Era of Secrecy, States Increasingly Restrict Media Access to Executions

On December 18, Joseph Corcoran is sched­uled to be the first per­son exe­cut­ed by Indiana offi­cials in 15 years. For the first time, the state will use a sin­gle drug, pen­to­bar­bi­tal, which comes from an unknown source and has been known to cause pris­on­ers ​“excru­ci­at­ing” pain dur­ing exe­cu­tions. But no media wit­ness­es will be present to relay what hap­pens to the pub­lic. Indiana is an out­lier in its pol­i­cy deci­sion to com­plete­ly exclude the press from wit­ness­ing exe­cu­tions in the state. But a sur­vey by the Death Penalty Information Center finds that many states now sig­nif­i­cant­ly restrict whether and how mem­bers of the press may observe and doc­u­ment the execution process. 

Unobstructed media access to exe­cu­tions is crit­i­cal because the media observes what the pub­lic can­not. States gen­er­al­ly pro­hib­it cit­i­zens from attend­ing exe­cu­tions, so the media becomes the public’s watch­dog, pro­vid­ing impor­tant infor­ma­tion about how the gov­ern­ment is fol­low­ing the law and using tax­pay­er funds. ​“We’re the ones that are there as the eyes and ears of the pub­lic, and we’re there to ensure that the state does it cor­rect­ly,” said Rhonda Cook, a reporter for the Atlanta Journal-Constitution who has wit­nessed 28 exe­cu­tions. Without jour­nal­ists see­ing and hear­ing every step of the process, the pub­lic can only rely on offi­cial state accounts, which often refuse to acknowl­edge prob­lems regard­less of the evi­dence. For instance, with­out jour­nal­ists report­ing that Alan Miller was ​“jerk­ing and shak­ing” and lift­ing his head off the gur­ney as he gasped for breath for over five min­utes dur­ing his September 26 exe­cu­tion by nitro­gen gas, the pub­lic would only have heard Alabama offi­cials’ incred­u­lous assur­ance that the exe­cu­tion went ​“as planned” and was ​“humane and effective.”

In March, crim­i­nal jus­tice news out­let The Appeal chal­lenged Georgia’s media access pol­i­cy ahead of the sched­uled exe­cu­tion of Willie Pye, the state’s first in four years. Georgia bars any wit­ness­es from observ­ing the prepa­ra­tion of exe­cu­tion drugs and equip­ment, and only allows one media wit­ness to observe the pris­on­er being strapped to the gur­ney. During the exe­cu­tion, the state releas­es the drugs through tubes behind the wall and cuts audio access to the wit­ness cham­ber. In the past, audio has been essen­tial for media to doc­u­ment botched exe­cu­tions, as when media wit­ness­es count­ed Joseph Wood gasp­ing 640 times dur­ing his exe­cu­tion in Arizona or when Charles Warner said ​“my body is on fire” before he died in Oklahoma’s exe­cu­tion cham­ber. The Appeal, rep­re­sent­ed by the ACLU, argued that Georgia’s media restric­tions are uncon­sti­tu­tion­al under the First Amendment, and ​“the pub­lic depend[s] on media wit­ness­es’ abil­i­ty to see and hear the entire exe­cu­tion process to receive com­plete and accu­rate infor­ma­tion regard­ing how the State car­ries out one of the gravest of respon­si­bil­i­ties to which it is entrusted.” 

Georgia and Indiana are two of at least six­teen death penal­ty states that have passed new secre­cy statutes since 2010, and every state that has con­duct­ed an exe­cu­tion in the past decade now has a secre­cy statute. But a secre­tive approach to exe­cu­tions is an anom­aly in American his­to­ry. According to research by Professor Austin Sarat of Amherst College and stu­dents Theo Dassin and Aidan Orr, news­pa­pers have rou­tine­ly report­ed details of exe­cu­tions for hun­dreds of years, includ­ing who per­formed the exe­cu­tion and what mate­ri­als were used. In the late 1800s, sev­er­al states attempt­ed to bar media from cov­er­ing exe­cu­tions, but these bans were ​“wide­ly flout­ed” and ​“short lived.” Historically, efforts to hide the iden­ti­ty of exe­cu­tion­ers were the excep­tion rather than the rule. 

Recent secre­cy laws hide crit­i­cal details like the source of exe­cu­tion drugs and the iden­ti­ties of exe­cu­tion team mem­bers from the pub­lic — some­times even from death-sen­tenced pris­on­ers and their lawyers, who must obtain a court order for these details. Lawmakers argue that the laws pro­tect the safe­ty of the peo­ple who assist in exe­cu­tions. However, researchers have found no evi­dence of a cred­i­ble threat to any per­son asso­ci­at­ed with an exe­cu­tion. Instead, Professor Sarat notes, ​“new lethal injec­tion secre­cy statutes began to appear around the same time that state offi­cials began procur­ing drugs ille­gal­ly.” Pharmaceutical com­pa­nies cut off their sup­ply of drugs begin­ning in the late 2000s in response to media reports and pub­lic out­cry sur­round­ing botched lethal injec­tions. Investigative reporters have since doc­u­ment­ed states’ dubi­ous efforts to obtain exe­cu­tion drugs, includ­ing order­ing drugs from over­seas, exchang­ing suit­cas­es of cash for drugs in park­ing lots, and rely­ing on com­pound­ing phar­ma­cies with his­to­ries of health and safe­ty vio­la­tions. The press has also uncov­ered evi­dence that states have used unqual­i­fied med­ical per­son­nel to admin­is­ter execution drugs.

Georgia’s pol­i­cy ​“right­ly invites sus­pi­cion,” Professor Sarat wrote for Verdict. ​“What is it that Georgia doesn’t want the press to wit­ness and the pub­lic to know, and why does it want to restrict what the press can see and hear when it puts Pye to death?” Mr. Pye was exe­cut­ed on March 20. The Associated Press report­ed that as the pen­to­bar­bi­tal was inject­ed, he ​“began exhal­ing rapid bursts of air about a half-dozen times, caus­ing his cheeks to expand and his lips to quiver each time.” The Georgia Supreme Court denied The Appeal​’s emer­gency requests for full access to the execution.

DPI’s sur­vey of the 27 states that autho­rize the death penal­ty, plus the fed­er­al gov­ern­ment, found that media poli­cies vary wide­ly in how many jour­nal­ists are allowed to attend an exe­cu­tion. The num­ber ranges from zero in Indiana and Wyoming to 12 in Florida. Some states — includ­ing Alabama, which leads the coun­try in exe­cu­tions this year — allow media access only at the dis­cre­tion of the depart­ment of cor­rec­tions. States dif­fer on whether the DOC selects indi­vid­ual jour­nal­ists, or whether des­ig­nat­ed media out­lets are per­mit­ted to select the jour­nal­ists who will attend. 

States enshrine their media access poli­cies in statutes, exe­cu­tion pro­to­cols, or infor­mal guid­ance. Many appear to rely on the dis­cre­tion of cor­rec­tions offi­cials, allow­ing states to restrict media access with­out notice. Many states also impose addi­tion­al restric­tions on media access not list­ed in their for­mal poli­cies, such as cut­ting audio dur­ing the exe­cu­tion or per­mit­ting visu­al access to the pris­on­er only after the IV has already been insert­ed. Often these restric­tions only become clear once jour­nal­ists wit­ness the exe­cu­tion. Broadly writ­ten poli­cies allow states to claim open­ness and trans­paren­cy but restrict essen­tial access in prac­tice. Only some states pub­licly clar­i­fy how jour­nal­ists can doc­u­ment the exe­cu­tion; those states typ­i­cal­ly pro­vide pen­cil and paper for jour­nal­ists to take notes, but uni­form­ly bar jour­nal­ists from using record­ing devices, including cameras. 

“Whether by leg­is­la­tion or admin­is­tra­tive action, the last decade has wit­nessed a dra­mat­ic inten­si­fi­ca­tion and expan­sion of the regime of secre­cy,” Professor Sarat wrote. ​“It rep­re­sents a clear depar­ture from tra­di­tions of dis­clo­sure sur­round­ing the execution process.”

In Holden v. Minnesota (1890), the Supreme Court upheld a total ban on media access to exe­cu­tions, but has not ruled direct­ly on the issue since. The Court held in Richmond Newspapers v. Virginia (1980) that the First Amendment guar­an­teed a pub­lic right to attend a mur­der tri­al. ​“To work effec­tive­ly, it is impor­tant that society’s crim­i­nal process sat­is­fy the appear­ance of jus­tice, and the appear­ance of jus­tice can best be pro­vid­ed by allow­ing peo­ple to observe it,” the Court wrote. However, the Court has also ruled that the press does not have greater con­sti­tu­tion­al rights than the gen­er­al pub­lic to access pris­ons, and upheld sev­er­al restric­tions on media inter­views with pris­on­ers.¹ 

Based on these prece­dents, some courts have found that the media has a First Amendment right to view an exe­cu­tion with­out obstruc­tion.² A California fed­er­al court ruled that the Constitution ​“mandate[s] the public’s pres­ence dur­ing the entire exe­cu­tion,” because the ​“public’s per­cep­tion of the amount of suf­fer­ing endured by the con­demned and the dura­tion of the exe­cu­tion is nec­es­sary in deter­min­ing whether a par­tic­u­lar exe­cu­tion pro­to­col is accept­able.” In affirm­ing that rul­ing, the Ninth Circuit Court of Appeals held that ​“his­tor­i­cal tra­di­tion strong­ly sup­ports the public’s First Amendment right to view the con­demned as the guards escort him into the cham­ber, strap him to the gur­ney and insert the intra­venous lines.” Other courts have upheld restric­tions on the process, such as using cur­tains to hide the IV inser­tion.³ Courts typ­i­cal­ly reject media requests to broad­cast or record exe­cu­tions.⁴

Even when a state allows media access to an exe­cu­tion, or enshrines cer­tain require­ments in its exe­cu­tion pro­to­col, there is no guar­an­tee those poli­cies will be fol­lowed. Arizona state law autho­rizes up to five media wit­ness­es, but the state only approved three reporters to attend the 2022 exe­cu­tion of Clarence Dixon and denied access to the Arizona Republic, the state’s largest-cir­cu­la­tion news­pa­per. A fed­er­al dis­trict court had ordered the Department of Corrections to allow wit­ness­es to view the entire exe­cu­tion, but the state blocked their view of a por­tion of the process. The Arizona Republic accused the DOC of retal­i­at­ing against the paper for its crit­i­cal report­ing on the state’s death penal­ty. The exe­cu­tion, the state’s first in eight years, was botched, illus­trat­ing the impor­tance of unob­struct­ed media access; the exe­cu­tion team tried for 25 min­utes to insert an IV line as Mr. Dixon gri­maced in pain, before cut­ting into Mr. Dixon’s groin to place the IV. 

Other media have also alleged retal­i­a­tion by state offi­cials after crit­i­cal report­ing about exe­cu­tions. In 2013, inves­tiga­tive jour­nal­ist Chris McDaniel dis­cov­ered that the phar­ma­cy sup­ply­ing exe­cu­tion drugs to Missouri was not licensed to sell in the state, forc­ing the DOC to find a new sup­pli­er. The DOC then repeat­ed­ly denied Mr. McDaniel’s appli­ca­tions to attend exe­cu­tions despite his long his­to­ry of report­ing on Missouri’s death penal­ty. In 2018, the state agreed to change its media wit­ness pol­i­cy to set­tle a law­suit from Mr. McDaniel and the ACLU. Where before the DOC direc­tor had sole dis­cre­tion to choose wit­ness­es, the state’s new pol­i­cy allowed Missouri media agen­cies and the Associated Press to select the reporters that will attend an execution. 

Media pres­sure has result­ed in pol­i­cy changes in oth­er states as well. In 2017, Arkansas sought to restart exe­cu­tions after a 12-year pause — but the DOC announced that the three allot­ted media wit­ness­es would not be allowed a pen­cil or paper to take notes. ​“I trust your abil­i­ty to be able to clear­ly and con­cise­ly report what you would have wit­nessed,” depart­ment spokesman Solomon Graves told reporters. After KUAR and the Arkansas Times report­ed on the pol­i­cy, the DOC reversed course and autho­rized note­tak­ing dur­ing the exe­cu­tion of Ledell Lee. 

Some states have pro­hib­it­ed media access to death-sen­tenced pris­on­ers before their exe­cu­tions, which fur­ther restricts pub­lic insight into key prob­lems with a state’s death penal­ty or exe­cu­tion process. Several states, includ­ing Idaho and Tennessee, bar inter­views with pris­on­ers after an exe­cu­tion war­rant has been issued. These restric­tions align with wide­spread state efforts to ​“chill” pris­on­er cor­re­spon­dence with media — to sup­press the abil­i­ty of incar­cer­at­ed peo­ple to share their expe­ri­ences with the pub­lic. ​“Much of what is known about incar­cer­a­tion comes from peo­ple who have been on the inside and have told their sto­ries at great per­son­al risk,” writes Brian Nam-Sonenstein for the Prison Policy Initiative in a report doc­u­ment­ing these restrictions.

South Carolina bars inter­views with all pris­on­ers under any cir­cum­stances. This pol­i­cy pro­voked a recent law­suit by the ACLU, which seeks to inter­view death-sen­tenced pris­on­er Marion Bowman, whom the state has indi­cat­ed will be the next per­son sched­uled for exe­cu­tion. In September, a fed­er­al dis­trict judge dis­missed the law­suit, but the Fourth Circuit heard the ACLU’s appeal on November 12. The ACLU argues that the state’s pol­i­cy ​“fur­thers too lit­tle and sup­press­es too much,” vio­lat­ing First Amendment free speech rights.

The trend towards secre­cy in exe­cu­tions has pro­voked bipar­ti­san crit­i­cism. State secre­cy laws con­nect­ed to cap­i­tal pun­ish­ment should be over­turned in favor of increased gov­ern­ment trans­paren­cy and account­abil­i­ty,” Senior Fellow Colleen P. Eren argued recent­ly in an arti­cle for the con­ser­v­a­tive lib­er­tar­i­an Reason Foundation. ​“Transparency would allow for prin­ci­ples inex­tri­ca­ble from democ­ra­cy and the free mar­ket, includ­ing free­dom of access to infor­ma­tion on which cit­i­zens base their deci­sions for spend­ing, gov­er­nance, and pol­i­cy, to flour­ish.” For Mr. Corcoran’s sched­uled December exe­cu­tion, the Indiana Libertarian Party and the Indiana Catholic Conference are among the groups who have pub­licly declared their opposition. 

The Supreme Court com­ment­ed on the con­se­quences of secre­cy in the crim­i­nal jus­tice sys­tem in Richmond Newspapers v. Virginia. ​“People in an open soci­ety do not demand infal­li­bil­i­ty from their insti­tu­tions, but it is dif­fi­cult for them to accept what they are pro­hib­it­ed from observing.”

*According to the Oklahoma Department of Corrections’ Information Management Policy, (eff. 8/​20/​24), sec­tion VI(B)(1)(g), ​“Media inter­views will not be allowed for any inmate sen­tenced to death, assigned to death row, or await­ing exe­cu­tion.” However, accord­ing to the Public Relations office of the DOC, this pro­vi­sion only applies to in-per­son inter­views; death row pris­on­ers may par­tic­i­pate in media inter­views by phone.