Appeals Court Backs Prison Curbs on Execution Access

California officials can legally limit what media representatives are allowed to see when an inmate is executed by lethal injection, a federal appeals court in San Francisco ruled Thursday.

A lower court had held that state prison regulations limiting media access violated the 1st Amendment, but the U.S. 9th Circuit Court of Appeals disagreed.

The 3-0 ruling holds that the 1st Amendment does not guarantee the press a right of special access to information not available to the public generally. The judges stressed that in the only decision in which the U.S. Supreme Court discussed a state’s restrictions on media or public access to executions, the high court in an 1890 case from Minnesota upheld a total ban on such access.

Moreover, the judges emphasized that the lower court decision by U.S. District Judge Vaughn R. Walker in San Francisco was the only one ever rendered by a federal court that granted the press unrestricted access to executions. In his March 1997 decision, Vaughn said: “Short of waging war, capital punishment indisputably represents the ultimate exercise of state power. When the state chooses to wield its authority this way, the people must have confidence that it does so within the boundaries prescribed by law.”

The 9th Circuit judges said Walker went too far. “Whatever 1st Amendment right might exist to view executions, the ‘right’ is severely limited,” wrote Judge Michael Daly Hawkins of Phoenix.

The prison regulations that had been challenged by the news media said that, before witnesses are allowed in the observation room at San Quentin Prison, where the state administers capital punishment, a condemned inmate must be strapped to a gurney in the execution chamber, the intravenous tubes inserted in his or her veins and a saline solution running properly.

Media personnel, represented by the California First Amendment Coalition and the Society of Professional Journalists, had complained that these restrictions prevented them from fully observing all the key portions of an execution procedure, including the demeanor and competence of the inmate as he entered the execution room.

Witnesses to the state’s first execution by lethal injection--that of so-called Freeway Killer William Bonin in February 1996--argued that they had been unable to perceive the change from life to death because, when they first saw Bonin in the execution room, he already had been strapped on a gurney.

Critics of the restrictions maintain that they amount to an attempt to sanitize the execution procedure, noting that members of the public and media representatives do not see prison officials put the IV needles into the inmate’s arms.

Media attorneys contended that the state had significantly altered the procedures that had been used for more than 100 years, in particular the procedure that had been utilized since the state started executing people in the gas chamber in 1937. Historically, members of the public, including journalists, have been able to observe those executions from the moment the inmate entered the gas chamber until he was pronounced dead.

In response to the arguments by media attorneys, prison officials countered that because death by lethal injection can take as long as 20 minutes there is a risk that the identity of execution team members would be revealed, subjecting them to harassment and intimidation, impacting the execution of their duties, and compromising the safety and security of the officers, their families and the prison.

Since the Bonin execution, prison officials have made one change in the way executions are conducted. They now announce when they have started transmitting through the IV line the three lethal drugs that kill the condemned inmate.

Deputy Atty. Gen. Karl S. Mayer, who represented state officials, said the 9th Circuit had used sound legal reasoning in the case titled California First Amendment Coalition vs. Arthur Calderon, Warden of San Quentin.

“Our position is that there is no 1st Amendment right here,” Mayer said. “The 1st Amendment right [of access] has been in judicial proceedings. Anyone can walk in from the streets and sit down in a courtroom. No one can walk into a prison. A prison is not a public place. It never has been and never will be.”

The 9th Circuit agreed with the contention of the plaintiffs, represented by the American Civil Liberties Union of Northern California, that “executions are unquestionably matters of great public importance,” and acknowledged that more knowledge leads to a better informed public.

Nonetheless, Hawkins, joined by Judges James R. Browning of San Francisco and Harry Pregerson of Los Angeles, agreed with Mayer and said that the question presented by this case was governed by a line of cases dealing with access to prisons, not access to trials. The judges--all of whom were appointed by Democratic presidents--stressed that execution procedures are peculiarly within the expertise of prison officials and therefore their decisions should be given deference in the absence of substantial evidence indicating that their concerns about security are exaggerated.

ACLU attorney Alan L. Schlosser said, “Even if you accept that it is a prison condition case and lower standards [to impose 1st Amendment restrictions] apply, we think we can meet that burden.

“We have suggested to prison officials that they have members of the execution team wear surgical masks,” he said, adding that the masks would take care of prison officials’ concerns about revealing the identity of execution team members. Moreover, Schlosser noted that a former San Quentin warden had testified that there were no real security concerns.

Thursday’s decision modified an April 1998 ruling by the 9th Circuit and was issued in response to the ACLU’s request for a rehearing. This time, the 9th Circuit sent the case back to Judge Walker to determine whether the plaintiffs have presented “substantial evidence” that the new procedures represent “an exaggerated response to . . . security and safety concerns.”