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The problem of secrecy now surrounding the execution process in the United States is well documented. Over the past decade, as the Death Penalty Information Center reports, death penalty states across the country “have enacted new secrecy statutes that conceal vital information about the execution process.”
Some prevent witnesses “from seeing at least some part of the execution … (or) from hearing what’s happening inside the execution chamber,” the center notes. “No state … has allowed any witness … to know when each drug is being administered.”
Abolitionists have long contended that the news media should be able to witness every stage of the execution process in order to provide the public a clear view of what it is the population is supporting when it allows the state to put people to death. Courts have generally rebuffed these requests for unimpeded access.
But late last month, Debora Grasham, a U.S. magistrate judge for the District of Idaho, issued an unprecedented ruling enjoining the state from carrying out any executions until it can allow media witnesses to see and hear them from beginning to end. She was explicit that this must include the “preparation and administration of the lethal injection drugs.”
In that order, she pulled back the curtain on a critical stage in the lethal injection process, when the lethal drugs are handled and given to condemned inmates. In her opinion, Grasham recognized that transparency in that moment is especially important at a time when, as the DPIC argues, states “have conducted some of the most problematic executions in American history.”
Her opinion offers a model for judges in other jurisdictions to follow. It carefully parses existing precedent, forcefully articulates First Amendment values, balances competing interests, and suggests that if the state is going to kill, it cannot hide the “method and manner” it uses to put people to death.
Grasham rightly asserts that “viewing the method and manner used to execute a person has been historically open to the public and viewing the entirety of an execution plays a significant positive role in the public’s understanding of modern execution procedures.”
My research on the history of execution secrecy in the United States supports her conclusion. As I have written, “In the late 1800s and early 1900s, local newspapers frequently reported details about hangings, including the rope’s price, manufacturer, and materials. As the State of Virginia planned to hang the abolitionist John Brown, it conducted a public vetting process to select the particular kind of rope that would be used in Brown’s execution. All of the ropes it considered were displayed for the public.”
In addition, during the period “when hanging was America’s primary execution method … rope makers often openly displayed and marketed their hanging ropes. Additionally, the specifications and construction of the gallows were frequently discussed in the press.”
To offer one more example, when the electric chair was first used, Edwin Davis, the man who built the device, obtained a patent for it in 1897. The patent, I found, “contained a detailed drawing explaining all of the components of the electric chair apparatus and their function.”
And it was available to the public.
But that was then.
In our era, the response of death penalty states to botched executions is to enact new laws hiding much of the execution process from the public.
In 2013, in reaction to drug manufacturers’ experiencing cold feet about their products being used in executions, Georgia enacted a statute that forbade disclosure of “the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence.” That information, Georgia said, was a “confidential state secret.”
Other states have not used the language of state secret, even as they have done more to hide executions.
As the DPIC observes, “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, it explains, “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.”
Some death penalty states “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.”
Idaho claimed that allowing news media to see and hear what transpired in the so-called medical team room would threaten the “safety and anonymity of the medical team members” and “require renovations to equip the rooms with additional cameras and microphones.”
Grasham was not convinced. She insisted that without media access to the room, the public’s right to know would be severely compromised.
The judge listed the kinds of things that are typically done in that room, “including preparing and labeling syringes that will be used to contain the lethal injection drugs, drawing the lethal injection drugs into the prepared syringes, tracking the syringes, and monitoring the condemned person and their vital signs.”
Most importantly, “the medical team members are responsible for administering the lethal drugs from the prepared syringes into the IV lines attached to the condemned person.”
These are critical steps in any lethal injection.
The judge noted that the 9th U.S. Circuit Court of Appeals, which handles appeals from Idaho, long ago found that the First Amendment applies to executions and has reaffirmed that view on many occasions. It held that “the public enjoys the First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those initial procedures that are inexorably intertwined with the process of putting the condemned inmate to death.”
In Grasham’s view, what happens in the medical team room is certainly “inexorably intertwined” in that process. She insists: “The ability to see and hear executions in their entirety, including the preparation and administration of the means of achieving death, has a historical tradition of being open to the public.”
Restrictions like the one imposed in Idaho may serve the state’s interest, but they do not serve the public interest. They make it easier for state officials to hide mistakes and to escape accountability.
Judges should not acquiesce in that effort.
As the Death Penalty Information Center explains, “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.”
Grasham agrees and has done us all a service by bringing that insight more fully into view and offering a compelling legal justification for it.
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