From the Spring 2001 issue of The News Media & The Law, page 51.
By Mysty Litman
The scheduled execution of Timothy McVeigh on May 16 promised to bring the daily routine in Terre Haute, Ind., to a standstill.
Faced with security concerns in the city that houses the federal government’s lone execution facility, officials took great measures to ensure order. The local school district cancelled classes and a federal judge closed the courts for the day. Police expected protestors on both sides of the death penalty dispute to demonstrate in two separate local parks.
With a nod from U.S. Attorney General John Ashcroft, survivors and relatives of the 168 victims killed in the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City were permitted to witness his death on closed-circuit television. And approximately 1,400 journalists received credentials to report the details of the execution.
But prison officials granted only a handful of journalists permission to view the Oklahoma City bomber’s final moments. Prison officials set a strict limit to the number of reporters: one from the Tribune-Star in Terre Haute, Ind., and one from the Daily Oklahoman; two representing national print media; two representing television networks; two for wire services; one from radio; and one local television reporter rounded out the group.
Officials also stipulated that the chosen 10 would act as pool reporters and brief the media located in two press tents outside of the prison.
The local Holiday Inn opened its doors to the media overflow, allowing reporters to file their stories from work stations in the hotel’s conference room.
But in addition to the execution of the man convicted of the most devastating act of domestic terrorism, there are almost 4,000 other death row inmates throughout the country who lack the same notoriety and whose crimes have not garnered national attention. Their executions will occur without the heightened preparation in Terre Haute — but the news media also will report their deaths, despite difficulties imposed by the prison system.
In the 38 states that use capital punishment, journalists represent the public interest by witnessing executions performed on behalf of the public. In a few states, the press has been engaged in an ongoing battle to witness executions from the moment guards lead the inmate into the execution chamber until the time of death. Regulations at the federal penitentiary in Terre Haute allow witnesses to view executions only after the inmate is strapped to the gurney. Members of the press and First Amendment advocates oppose this practice, arguing that only through detailed reporting will the public fully comprehend the execution process. They also argue that the press performs a vital watchdog function that warrants liberal access to the prison system.
On the opposing side, prison officials face security concerns and want to protect the identities of execution staff. Recent developments in the dispute for better media access to executions have yielded noteworthy results.
Witness to the Execution
Twenty-eight inmates sit on death row in Oregon. The future of the state’s death penalty remains uncertain, as the public has supported repealing it. Yet the state legislature, corrections officials and the press have continued to debate the right to witness executions in their entirety since the Oregon Department of Corrections’ failed attempts to impose more restrictive rules in 1997. Along with only partial access, the rules would have forced reporters to sign non-disclosure statements to protect prison guards’ identities. After the press sued for complete access, the state Supreme Court in 1999 ruled that the regulations were too restrictive.
Although the state has not performed an execution since 1997, corrections officials in January again pushed for legislation to conceal the preparation stage of executions. Members of the press, joined by the American Civil Liberties Union, vigorously protested the proposed legislation and testified about the detrimental effect to press freedom.
In March, a proposed amendment appeared to have the endorsement of the corrections department, prison guards union and news media. If approved, overhead television cameras will be installed in the execution chamber and allow witnesses to view the preparation stage while the staff remains anonymous.
For Leroy Yorgason, executive director of the Oregon Newspaper Publisher’s Association, using closed-circuit television to broadcast the entire execution process is a suitable amendment to House Bill 2096.
“The ability to see the execution process in more detail through closed-circuit TV is a step forward,” he said. “And we do accept it.”
Perrin Damon, communications manager for the Oregon Department of Corrections, said the department also supported the compromise because it resolved concerns about prison workers’ safety. During meetings, Damon said, the department conducted a test to see if closed-circuit broadcasts would conceal the identities of execution staff. The identities of staff members were hidden as they wore hats and did not look at the camera.
“The outcome alleviates our concerns,” Damon said.
Although the state has not scheduled any executions this year, Damon said it was important to reach an agreement. With the amended bill currently before the state Senate, both Yorgason and Damon said they hope the bill will pass before the legislative session ends in May. “We need the law in place, because sometimes (executions) can move forward rather quickly, particularly if someone is a volunteer,” Damon said. A volunteer is a name corrections officials give to an inmate who has dropped all of his appeals.
Meanwhile, the lengthy automatic appeals process for capital punishment cases has created a backlog of 592 inmates currently awaiting execution in California. Convicted murderer Robert Lee Massie, California’s longest serving death row inmate, volunteered for execution when he dropped all of his appeals in 1998. Convicted of killing a liquor store owner more than 20 years ago, Massie’s execution on March 27 presented a practical test for the news media who have fought for the last five years to witness the entire execution process.
David Kravets, a reporter with The Associated Press, witnessed the execution along with 16 other journalists. According to Kravets, the state complied “100 percent” with a federal judge’s ruling that witnesses hold a constitutional right to view all phases of an execution. Media representatives and other witnesses watched as guards led Massie into the execution chamber, strapped him to a gurney and inserted the needles into his arms that delivered the lethal drugs.
Another marked difference in Massie’s execution was the visible presence of medical technicians, who were previously hidden behind a curtain during the preparation stage.
“Technicians did not conceal their identities, which is key, except they removed their name badges,” Kravets said.
As in Oregon, security concerns prompted California’s prison officials to impose strict rules regarding executions. As a result, media organizations sued for uninterrupted access and won at the district court level last July. In addition to First Amendment rights of potential witnesses, U.S. District Judge Vaughn Walker held that the prison’s rules governing access were an “exaggerated response” to safety considerations.
However, the state maintains that full access endangers execution staff. An appeal by state prison officials to the U.S. Court of Appeals in San Francisco (9th Cir.) to overturn Walker’s ruling still awaits review.
As Massie’s execution date quickly approached, the state filed an emergency appeal to suspend the district court ruling and asked the judge to reconsider. The judge refused to lift the order allowing media access. One day prior to Massie’s execution, the U.S. Supreme Court declined to rule on an emergency appeal by the department of corrections, so Massie’s execution proceeded as scheduled and witnesses viewed the entire process.
“It was a ridiculous argument,” Kravets said, adding that there is no “prurient interest” in the news media’s fight to view executions.
“We want to see how it’s carried out,” he said. “The public has a right to know what the state actually does when it kills somebody.”
David Fidanque, executive director of the ACLU of Oregon, echoed the importance of the public’s right to complete media access.
“An execution of an inmate is the most awesome power that any government has,” he said. “It’s critically important that the public know how that process is carried out, if there are any problems with it and if it’s handled appropriately by government officials.”
In some states, the press not only struggles to report thoroughly about executions, but also finds it virtually impossible to act as the eyes and ears of the public when prison officials closely monitor the media’s interaction with inmates. Following the Massie case, the California press may declare a momentary victory in terms of access, but prison policies in other aspects are not quite as open.
California is one of eight states that bans face-to-face interviews with prison inmates, according to a prison access project conducted by the Society of Professional Journalists.
Since 1995, state corrections officials have kept a stranglehold on the press by barring personal interviews with specific prisoners. Although the state legislature passed a measure three times allowing greater access, the bills were not signed by the governors.
Last October, Gov. Gray Davis vetoed a bill for the second year in a row that would have allowed meaningful access to inmates. Former Gov. Pete Wilson also vetoed a similar bill.
In his latest veto message, Davis explained that “this bill is inconsistent with the national trend to reduce, not expand, rights of prisoners.”
Currently, media representatives may correspond with inmates through mail or by telephone, which is often monitored. They may also visit inmates after waiting to be placed on a visitation list.
However, reporters are not permitted to use cameras, tape recorders, or even a pen or pencil, all essential to the newsgathering process.
The most egregious affront to newsgathering occurs in the states where a journalist cannot enter a facility.
Illinois prison officials forbade Tori Marlan, a reporter for The Chicago Reader, from attending a class for incarcerated women after she wrote an article about a class action lawsuit filed by female inmates. The prisoners claimed their rights were violated by the jail’s strip-search policy.
In early April, however, an Illinois trial court ruled that prison officials violated Marlan’s First Amendment rights because they admittedly denied Marlan access due to the content of her strip-search article. The court instructed officials to allow Marlan access to the jail.
As for the federal penitentiary in Terre Haute, Ind., restrictions imposed late last year limit interviews with death row inmates to telephone calls.
With 15 minutes of telephone time a day, McVeigh, who will be the first prisoner to be executed under federal law since 1963, was permitted to use his time to speak with the media. However, Kathleen Hawk Sawyer, director of the U.S. Bureau of Prisons, made it clear that reporters could not record the conversations.
When Ashcroft announced that McVeigh’s execution would be broadcast for the survivors and victims’ families, he also expressed his desire to limit McVeigh’s exposure.
“I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims,” Ashcroft said.
But for the Radio-Television News Directors Association, Ashcroft’s sentiments contradicted the tenets of a free press.
“The federal government has no appropriate role in determining who or what has access to the ‘public podium’ that is our nation’s free press,” said the association’s president, Barbara Cochran, in a press release protesting the restraint. “For you to attempt to assume such a role by curtailing access to and news coverage of Mr. McVeigh rocks the very foundation of our democratic society and represses the exercise of a fundamental freedom.”