Court Allows Full Viewing of Executions

Witnesses have a constitutional right to observe executions in their entirety, from the moment the condemned inmate enters the death chamber to the time he is declared dead, a federal appeals court ruled Friday.

The U.S. 9th Circuit Court of Appeals held that a California state prison rule, which limits media access to the period after the condemned inmate is strapped to a gurney and needles are inserted in his arms, “unconstitutionally restricts the public’s 1st Amendment right to view executions.”

The court said prison officials’ arguments that unfettered viewing could endanger guards were an “exaggerated unreasonable response” to legitimate safety concerns.

The 3-0 ruling is the first in which a federal appeals court has ruled on the extent of media access to executions, according to legal experts.

The court upheld a ruling by U.S. District Court Judge Vaughn R. Walker in San Francisco, who had struck down the state’s viewing restrictions and issued an injunction barring San Quentin officials from enforcing them. Consequently, the full execution process has been open to 12 members of the public, 17 journalists and five individuals invited by the condemned inmate at the last two executions--those of Robert L. Massie in March 2001 and Stephen W. Anderson in January.

Walker acted in response to a lawsuit filed by the American Civil Liberties Union of Northern California on behalf of the Society of Professional Journalists and the California 1st Amendment Coalition. Both groups had objected to restrictions imposed by the California Department of Corrections when it started using lethal injection for the execution of William Bonin in February 1996.

“Witnesses were not permitted to watch Bonin as the guards brought him into the chamber, tied him down to the gurney, inserted the intravenous lines and left him alone to await the warden’s orders to dispense the chemicals,” 9th Circuit Judge Raymond C. Fisher wrote.

“Rather, by the time prison officials opened the chamber curtains, permitting the witnesses to see inside the chamber, Bonin lay motionless on the gurney, appearing to be asleep or sedated. The lethal chemicals were then administered--without any announcement to the witnesses--and after several minutes, Bonin was declared dead.

“The witnesses, therefore, observed Bonin as he died, but were unable to see the process leading to that point,” Fisher wrote.

Fully 17 minutes elapsed between the time the procedure started and the lifting of the curtain between the execution chamber and the public. Witnesses were unable to see complications that developed in inserting the intravenous line and “had to rely on the prison officials’ version of events,” thus eliminating independent witness observation, Fisher said.

When California in the past used the gas chamber, the opinion said, observers were able to watch prison staff members escort the condemned inmate into the execution chamber, strap him into the chair and administer the lethal gas until he was declared dead.

Fisher’s opinion was grounded on precedents that give the press access to trials and other aspects of criminal cases. And he emphasized that there are important public policy reasons for the ruling.

“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,” Fisher wrote.

“To determine whether lethal injections 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,” Fisher added.

His opinion was joined by 9th Circuit Judge Betty B. Fletcher and 8th Circuit Judge Myron H. Bright, on special assignment.

State officials have contended that the policy was based on concern for the safety of guards if their identities became known. But state officials conceded that there has never been an incident in which a guard at an execution has been publicly identified or attacked.

In addition, evidence was presented that California corrections officials have been concerned that witnesses might observe problems arising before an inmate is strapped onto the gurney.

“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,” San Quentin’s warden, Arthur Calderon, wrote in a 1996 memo. “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 certainly be misinterpreted by the media and inmate-invited witnesses who don’t appreciate the situation we are faced with.”

Friday’s ruling was praised by media lawyers and death penalty foes.

“No matter how one feels about capital punishment, executions should be open to view by independent observers,” said ACLU lawyer Alan Schlosser. State officials “were trying to sanitize the new method of execution,” he said.

“I think this is a very positive step on the part of the judiciary,” said actor Mike Farrell, president of Death Penalty Focus, a California group that seeks to abolish capital punishment. “We need to continue to unmask the brutal realities of this system, rather than allowing people to think this is a humane process that ends in a painless death.”

Russ Heimerich, a spokesman for the state Department of Corrections, said the agency was prepared to live with the decision. “I don’t think this is something we can’t work with,” he said.

“Our concern always has been the security of prison personnel,” he added.

Nathan Barankin, a spokesman for Atty. Gen. Bill Lockyer, said state attorneys are reviewing the opinion and have not decided whether to appeal.