A federal judge in Harrisburg, Pa., ruled Tuesday that a protocol limiting the ability of witnesses to see and hear all phases of an execution violates the First Amendment-based right of public access to judicial proceedings.
The court in Philadelphia Inquirer v. Wetzel ruled that because historically witnesses have been permitted full access to executions and such access would not jeopardize the safety of lethal injection administrators, all phases of execution procedures must be accessible to the public.
“There is a long history of complete public access to the entirety of executions that establishes a First Amendment right for witnesses nowadays to see the executions from start to finish," said attorney Stephen Shapiro, who along with attorneys for the ACLU of Pennsylvania represents two newpapers who challenged the partial closure.
The Pennsylvania Department of Corrections protocol required that a curtain between the injection chamber and the witness observation room be closed during certain phases of the execution process, specifically when the inmate first enters the chamber and is prepared for the execution, during a consciousness check after the administration of the first drug, and during the coroner’s examination of the inmate following the administration of the final two lethal injection drugs.
The Philadelphia Inquirer and The (Harrisburg) Patriot-News filed a lawsuit seeking the right to see and hear the entire execution process from start to finish without any curtain drawn. The plaintiffs argued that the press should be allowed to observe and report on the details of the execution process, such as if the inmate experiences any pain, statements made by the inmate, and any complications resulting from the administration of the drugs.
Chief Judge Yvette Kane applied the "history and logic" test established by the U.S. Supreme Court in determining whether there is a presumption of access to such proceedings. She observed that, “historical practice in Pennsylvania indicates that the public and press have traditionally enjoyed a right of access to executions. Even after Pennsylvania abolished public hangings [in 1834], witnesses were still invited to view the entirety of the hanging.”
Regarding the “logic” part of the test, she found that permitting the press full access to the entire execution contributes to the proper functioning of the execution process. According to the court’s opinion, “allowing the press to report on the entire method of execution may promote a more informed discussion of the death penalty. . . . it may promote the public perception of fairness and transparency concerning the death penalty [and] provide significant community therapeutic value, as well as expose the execution process to public scrutiny.”
The court rejected the argument by the Department of Corrections that the safety of the personnel who administer the lethal injections could be compromised because they could be retaliated against if anyone found out who they were. “The judge said that was a legitimate concern, but there is no evidence that in the past this ever happened to anyone. It’s completely speculative,” said Shapiro. He also noted that there are steps that the lethal injection team could do to conceal their identities, such as wearing surgical gear.
Additionally, full access to executions will allow for a more thorough evaluation of how Pennsylvania’s lethal injection procedures comport with evolving constitutional standards. Condemned inmates have challenged the constitutionality of state lethal injection protocols, concerned that the potential failure of state agencies to properly follow their lethal injection protocols will lead to severe pain during the execution process. This would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. According to the court, allowing the press to witness the entire execution process contributes to the proper functioning of the execution process by opening up an informed discussion about the Commonwealth’s lethal injection procedures.
The execution of Hubert Michael, scheduled for November 8, 2012, will be the first lethal injection execution in Pennsylvania permitting witnesses full access to all phases of the procedure.