Criminal
Aug. 6, 2002
Viewers May See Execution Preparations, Panel Decide
LOS ANGELES - Since California abolished public executions in 1858, capital punishment gradually has receded from public view, moving from hangings behind prison walls to the gas chamber and finally to a curtained lethal injection room concealed from all but a few invited guests.
On Friday, though, a panel of the 9th U.S. Circuit Court of Appeals pulled back the drapes shrouding the process.
A San Quentin State Prison rule preventing observers from seeing all but the final seconds of the execution "is an exaggerated, unreasonable response to prison officials' legitimate concerns about the safety of prison staff," the panel held.
"[The limited viewing] thereby unconstitutionally restricts the public's First Amendment right to view executions from the moment the condemned is escorted into the execution chamber," the court ruled." California First Amendment Coalition vs. Woodford, 2002 DJDAR 8729 (9th Cir. Aug. 2, 2002).
The panel upheld a lower-court ruling by U.S. District Judge Vaughn R. Walker in San Francisco. Deputy Attorney General Thomas S. Patterson could not be reached for comment. The state attorney general's office did not return telephone calls.
But a lawyer for the group that brought the challenge was elated.
"The court upheld an important principle, and that is when a state acts, in this case on the will of the people that we have capital punishment, the First Amendment requires full access to the circumstances in which it is performed," Jeffrey S. Ross of Pillsbury Winthrop in San Francisco said.
Ross represented a coalition of media organizations and the Northern California chapter of the Society of Professional Journalists in a six-year fight to do away with the state prison rule known as Procedure 770.
Procedure 770 was implemented in 1996 for the execution of the so-called Freeway Killer, William Bonin. Bonin was the first California inmate to die from lethal injection. In all but one of the seven executions since, Procedure 770 has been followed. Two days after Bonin's death, the 9th Circuit issued a preliminary injunction that allowed full viewing of the execution of Keith Daniel Williams.
The octagonal execution room at San Quentin has four large windows through which as many as 50 witnesses from adjoining rooms can watch a death row inmate die. Among those allowed to view executions are 12 official witnesses, 17 members of the media and five people invited by the condemned.
The inmate is brought into the chamber 25 minutes before his scheduled death. Four guards strap the inmate on a gurney, then two medical technicians insert into his arms two intravenous tubes - the second one in case the first one fails.
A saline solution is started to get the intravenous flowing, then the guards and medical technicians leave the room. Under Procedure 770, it is at this point that the curtains on the windows are pulled back, allowing witnesses to watch as the lethal chemicals pour into the inmate's body, and finally, as he or she dies.
Prison officials argued that shielding the guards and medical staff from view was necessary for their safety. Warden Jeanne Woodford rejected a suggestion that the staff conceal their faces with masks while the curtain was open. Woodford said it would interfere with the "bond" the staff developed with the condemned.
The media organizations that challenged the rule, including the Los Angeles Times, the San Francisco Chronicle and CNN, contended that full access to the entire execution is essential and that the public has a right to know what goes on during the whole procedure.
The 9th Circuit agreed.
"It is well-settled that the First Amendment guarantees the public - and the press - a qualified right of access to governmental proceedings," Judge Raymond C. Fisher wrote.
Judges Myron H. Bright and Betty B. Fletcher concurred.
In his opinion, Fisher recounted a brief history of state executions going back as far as 1196 in England, when as many as 50,000 often disorderly people would show up to watch.
"Historically, executions were open to all comers," Fisher wrote.
Public executions continued in the United States. The last one took place in Galena, Mo., in 1937, when 500 townspeople showed up to watch.
Fisher dismissed the prison's assertion that the public has a right to watch only from the moment "the lethal chemicals start to flow."
"[T]he same functional concerns that drove the court to recognize the public's right of access to criminal trial proceedings compel us to hold that the public has a First Amendment right to view the condemned as he enters the execution chamber, is forcibly restrained and fitted with the apparatus of death," Fisher wrote.
Fisher dismissed prison's concerns about staff safety as "an overreaction, supported only by questionable speculation."
"[W]itnesses were as likely to identify execution team members under the lethal gas regime (and presumably during hangings, earlier) as under the lethal injection regime," Fisher wrote.
Yet, the judge noted, there is not a single case on record in which an execution staff member has been targeted because of his or her job.
Indeed, if that were to happen, Fisher noted, the inmate - "who arguably has the strongest motive to seek retaliation" - spends much of his final day with his executioners and easily could identify them on the phone to his lawyer or family and friends.
Fisher also pointed out that the time the execution team is in the room gradually has been reduced - from 17 minutes when Bonin was killed down to a low of six minutes for the 1999 execution of Manuel Babbitt. Fisher also noted that the staff members have their backs to the windows during much of the time they are working in the execution room.
"In sum, [the prison officials'] fear that execution team members will be identified and retaliated against is speculative and contradicted by history," Fisher wrote.
David Houston
david_houston@dailyjournal.com
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