Judge Advances Lawsuit Over Access to Executions

SAN FRANCISCO (CN) – California cannot dodge a lawsuit claiming it enacted unconstitutional rules to hide the most gruesome parts of inmate executions from the public, a federal judge ruled Friday.

U.S. District Judge Richard Seeborg denied the state’s motion to dismiss a lawsuit challenging rules that bar the public from viewing the preparation and injection of lethal drugs – as well as the aftermath of botched executions.

Quoting from the 2002 Ninth Circuit ruling California First Amendment Coalition v. Woodford – which ruled in favor of executions remaining open to the public – Seeborg agreed the public has a First Amendment right to “view executions from the moment the condemned is escorted to the execution chamber, including those ‘initial procedures’ that are inextricably intertwined with the process.”

Representing media outlets that sued the state, attorney Christopher Sun with Keker Van Nest in San Francisco hailed the judge’s ruling as on point, adding that public access to executions is “critical to informing our national dialogue about the death penalty.”

The Los Angeles Times, KQED and San Francisco Progressive Media Center, which publishes 48hills.com, sued the state in April after it approved new lethal injection policies at San Quentin State Prison, the only state facility that puts inmates to death.

Under rules finalized March 1, lethal drugs must be prepared outside of public view in an “infusion control room” while the inmate is strapped down in a separate “lethal injection room,” which the public can see. The rules also require curtains be closed on the viewing room if an inmate has not died after receiving a third dose of lethal drugs.

The plaintiffs claim shielding parts of the execution process from public view harms the integrity of the process and prevents independent observers from scrutinizing “whether executions are fairly and humanely administered.”

California contends that preparing lethal injection drugs and providing medical assistance are not part of the execution process, and that the public has no right to view those events.

Although no court has extended the right of access to before an inmate enters the execution chamber, Seeborg found that doesn’t prevent the plaintiffs from asserting that such a right exists.

“Preparing the chemicals, as pleaded, could be an initial procedure ‘inextricably intertwined with the process of putting the condemned inmate to death,’” Seeborg wrote in his 12-page ruling, again quoting from California First Amendment Coalition v. Woodford.

The judge also found the state could be violating the First Amendment by closing curtains on the execution chamber when an inmate fails to die after a third dose of lethal drugs.

Similarly, in 2016 a federal judge in Arizona ruled that the public has a First Amendment right to view executions in their totality.

Seeborg said the state can’t hide part of the execution from the public unless it does so for a “legitimate penological purpose,” such as future crime deterrence, quarantine or internal security.

The state cited a prisoner’s medical privacy interest as justification for hiding parts of the execution process. But Seeborg noted the Ninth Circuit rejected that reasoning in a 2012 ruling, Associated Press v. Otter, finding that the state’s concern for privacy and dignity appeared absurd when it “already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death.”

“The burden remains with the State to propose a legitimate penological interest if one exists,” Seeborg wrote.

Last year, the California Supreme Court upheld a voter-backed measure to speed up executions in the state, but also ruled that a five-year limit to decide death penalty appeals is not mandatory.

Only 13 men have been put to death in California since the state restored capital punishment in 1978. The last execution took place in January 2006.

Currently, 744 inmates await execution in California – 721 men and 23 women.

A California Department of Corrections and Rehabilitation spokeswoman said the department is reviewing the judge’s order and declined further comment.

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