A federal appeals court heard oral arguments Thursday in The Associated Press and 16 other media organizations’ request for full viewing access to an Idaho execution.
The news agencies insisted that as representatives of the public, they have a fundamental First Amendment right to view executions from start to finish, including that of death row inmate Richard A. Leavitt, which is scheduled to take place in Idaho on June 12.
In Idaho, four members of the news media are offered seats to executions, although their view into the death chamber is obstructed until prison officials who insert catheters into the veins of the condemned have exited the room. The news agencies seek complete access to Leavitt’s execution, including his entrance and preparation for the lethal injection.
A lower court found on Tuesday that the media organizations presented a compelling case but denied their request for a court order that would have declared the Idaho Department of Correction’s policy on media access to executions unconstitutional and granted them complete access to the proceeding. Judge Edward J. Lodge of the U.S. District Court for the District of Idaho said he was mostly concerned that the media’s challenge did not allow sufficient time for the Department of Correction to change its policy and could delay Leavitt’s impending execution.
In their opening brief to the court, the news organizations argued that “the lower court is essentially finding that a First Amendment right can be violated today as long as it is possible for First Amendment rights to be reasserted at some date in the future. Such a finding flies in the face of what our Constitutional rights are all about.”
Attorney Charles A. Brown, who authored the media’s brief and represented them before a three-judge panel of the U.S. Court of Appeals in Pasadena, Calif. (9th Cir.) called capital punishment a “strong, polarizing issue.”
“To have the government cut off the debate on something so vital just isn’t appropriate,” Brown said in an interview.
The U.S. Supreme Court has consistently ruled that the public – including members of the press – has a limited right of access to the prison system, although not necessarily to interview specific prisoners. State policies regarding media access to prisons and inmates vary widely, according to The Reporters Committee for Freedom of the Press’ First Amendment Handbook.
During oral arguments, the Ninth Circuit reminded attorneys for the Department of Correction that in 2002 the court ruled that witnesses in California are entitled to view executions – and possible complications – as soon as an inmate enters the death chamber, before he or she is is strapped down and injected, according to Brown.
“The court has already ruled that there’s a First Amendment right of access,” he added.
Leavitt is on death row for the 1984 murder and mutilation of 31-year-old Danette Elg.
Idaho Gov. C.L. “Butch” Otter and the Department of Correction said that the state’s “execution procedures allow for the privacy of the condemned inmate and dignity in the implementation of a death sentence,” according to Lodge’s June 5 order that the news agencies are now appealing.
Jeff Ray, public information officer for the Department of Correction, declined to comment for this article.