CONTACTS:
Al Cross, SPJ President, 502/648-8433 or across@mis.net
Peter Sussman, Northern California SPJ Chapter, 510/845-1311 or peter@psussman.com

SAN FRANCISCO -- The Northern California Chapter of the Society of Professional Journalists won an important court victory last week, in the first federal appellate decision acknowledging journalists’ First Amendment right to witness the execution process in its entirety.

The chapter and the California First Amendment Coalition, with legal assistance coordinated by the American Civil Liberties Union, were the plaintiffs in a suit against officials of the California Department of Corrections and San Quentin Prison, who argued that allowing journalists and other public witnesses to view the entire execution process would risk the safety of prison staff.

On Aug. 2, the Ninth Circuit Court of Appeals upheld a ruling by District Judge Vaughn Walker that the state’s argument was “an exaggerated, unreasonable response to prison officials legitimate concerns about the safety of prison staff and thereby unconstitutionally restricts the public’s First Amendment right to view executions from the moment the condemned is escorted into the execution chamber.”

The appellate court unanimously held that “the public has a First Amendment right to view executions,” including the inmate’s demeanor during the process and the manner of the guards as they restrain the prisoner. This was the first such finding by a federal appeals court and applies throughout the Ninth Circuit, which includes California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands.

The appellate court based its unprecedented ruling on the history of open executions extending back to the Middle Ages in England and continuing through the inclusion of “public witnesses” in this country when executions were moved from an outdoor public square into prison execution chambers.

Before California switched its form of execution to lethal injection, representatives of the public and press were allowed to witness the entire execution, from the moment the condemned person entered the death chamber. In 1996, in conjunction with the execution of William Bonin, the first person in California to die from lethal injection, San Quentin officials implemented a new policy, Procedure 770, which prohibited the public witnesses from seeing the process until after the prisoner was led into the chamber, laid on a gurney, secured with six straps and attached to intravenous lines in which a saline solution begins to flow. Only then, after the prison staff had left the chamber, were curtains opened so that the press and other public witnesses could observe as the chemicals were injected.

As states switch to lethal-injection executions, they often base their execution protocols on those in states that have previously made the switch, so similar restrictions are found in states throughout the nation.

The appeals court noted that the state “attempted to justify Procedure 770 as necessary to protect the anonymity of the execution staff, who according to defendants, face possible retaliation from prisoners in the general population or & from death penalty opponents. The district court agreed that ensuring staff safety is a legitimate safety concern, but found that defendants had presented no evidence that execution staff had ever been, or were ever likely to be, publicly identified or attacked.”

Furthermore, the appeals court found that Procedure 770 was “motivated, at least in part, by a concern that the strapping of a condemned inmate, the injection of intravenous lines or other aspects of a lethal injection execution would be perceived as brutal by the public and thus was, to that extent, prompted by considerations other than legitimate concerns for prison personnel safety.” It based that conclusion in part on a 1996 memorandum from Warden Arthur Calderon saying:

“In the event of a hostile and combative inmate, it will be necessary to use additional force and staff to subdue, escort and secure the inmate to the gurney. It is important that we are perceived as using only the minimal amount of force necessary to accomplish the task. In reality, it may take a great deal of force. This would most certainly be misinterpreted by the media and inmate invited witnesses who don't appreciate the situation we are faced with.”

The judges expressed concern that without public witnesses to the entire process, "the public will be forced to rely on the same prison officials who are responsible for administering the execution to disclose and provide information about any difficulties with the procedure."

The decision was written by Circuit Judge Raymond C. Fisher. The other judges were Myron H. Bright and Betty B. Fletcher. Their decision reaffirms the district court s permanent injunction, which prohibits the prison system from preventing uninterrupted viewing of executions “from the moment the condemned enters the execution chamber (to) the time the condemned is declared dead.”

“Defendants argue that the public does not have a right to view the initial execution procedures, but rather only the execution itself, which defendants define as beginning when the lethal chemicals start to flow,” Fisher wrote. “This definition, however, is simply of defendants own making. The public and press historically have been allowed to watch the condemned inmate enter the execution place, be attached to the execution device and then die.”

“Independent public scrutiny made possible by the public and media witnesses to an execution plays a significant role in the proper functioning of capital punishment. An informed pubic debate is critical in determining whether execution by lethal injection comports with the evolving standards of decency which mark the progress of a maturing society. ... To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the initial procedures, which are invasive, possibly painful and may give rise to serious complications.”

“This information is best gathered firsthand or from the media, which serves as the public’s surrogate.”

Peter Sussman, president of the Northern California SPJ chapter at the time the lawsuit was filed, said, “The appeals court’s decision underlines that death by execution is more than a photo op or sound bite. There are public concerns today about the methods used to kill the condemned, and there are rising doubts even about the guilt of many of those facing this irreversible sanction. So we journalists owe it to the public to tell the execution story as comprehensively and accurately as possible. We cannot do so when secretive prison officials stage-manage executions to hide them from public view. The appeals court has helped to restore journalists’ ability to inform the public about what is really going on behind those high walls and drawn curtains.”

The full opinion can be read at www.ca9.uscourts.gov/ca9/newopinions.nsf, case number 00-16752.