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.”