Federal judge rules suit to force California to make all portions of executions public may proceed

The gurney inside the execution chamber at San Quentin State Prison.
The gurney inside the execution chamber at San Quentin State Prison.
(Wally Skalij / Los Angeles Times)

A federal judge on Friday rejected an attempt by the state of California to dismiss much of a lawsuit that seeks to make public all portions of executions.

Several news outlets, including The Times, have sued the state to allow public access to the mixing of the chemicals for lethal injections.

For the record:

11:50 a.m. Aug. 17, 2018An earlier version of this article reported that the ACLU Foundation of Northern California was one of the plaintiffs suing the state. The group is representing one of the news organizations that filed the suit and is not a plaintiff.

The suit also seeks to permit the media to observe attempts to administer medical aid to inmates when executions are botched.


U.S. District Judge Richard Seeborg, who is hearing the case, ruled that the lawsuit may go forward.

The news organizations’ claims “are sufficient to raise the constitutional claims above the speculative level,” Seeborg said.

During a hearing Thursday, Supervising Deputy Atty. Gen. Jay M. Goldman argued that public access to all portions of executions was not required by law.

He said the chemicals for lethal injection are mixed three hours before an inmate is brought to the death chamber and that rendering aid if the execution fails “is by definition not part of an execution.”

Seeborg noted that he was aware of one botched execution where medical assistance had been given to the prisoner.

Lawyers said he was referring to the botched execution of Clayton Darrell Lockett in Oklahoma in 2014. Three minutes after Lockett was declared unconscious, he raised his head and spoke and attempted to rise from the table.


One of the doctors present stopped the execution, but Lockett suffered heart failure several minutes later.

Goldman asked whether the media also wanted to ride in the ambulance with an inmate if he or she were taken to the hospital or to view the inmate’s last meal.

Christopher S. Sun, representing the media, said the suit was simply intended to ensure that what happens in the execution chamber is made public.

Current regulation allows the state to decide when the curtain is drawn during an execution, Sun said.

That would deprive the public of knowing what happened to an inmate during a botched execution, a matter of heightened public interest, Sun said.

State regulation now requires a curtain on the viewing window to the execution chamber to be closed and the public address system turned off if the inmate does not die after receiving three doses of the lethal chemicals.


The news media lawsuit asks for an injunction to prevent the state from carrying out executions unless they are truly public.

The suit argues that regulations established by the Department of Corrections and Rehabilitation deny the public’s right to know whether execution staff properly prepare and administer the lethal chemical; the name of the chemical used; the number of doses; how the inmate reacts to each dose; and how effectively the execution team performs — particularly if the execution does not proceed as planned.

Seeborg did not say when he would rule.

California’s last execution occurred in January 2006. Executions cannot resume again until other legal challenges are resolved.

But supporters of the death penalty said those hurdles will soon be overcome because of voter passage of a 2016 ballot measure intended to speed up executions.

California governors cannot commute death sentences of inmates convicted of multiple felonies without the approval of four of seven justices of the state Supreme Court.


Twitter: @mauradolan


11:50 a.m.: This article was updated with the judge rejecting the state’s motion to dismiss the lawsuit.

This article was originally published at 3 a.m.