RICHMOND, Va. (CN) – A Virginia newspaper and a handful of national and international outlets filed a federal lawsuit against the state’s prison system demanding public access to the full execution process, claiming current policy allows much of the proceedings to be blocked by a curtain.
The complaint, filed Monday in Richmond federal court, says state regulations allow members of the media and public to view executions but a curtain is used to “obstruct witnesses from viewing critical steps in the execution process.”
Craig T. Merritt, the Richmond-based Christian & Barton lawyer who authored the complaint, wrote the curtain violates the press and public’s First Amendment rights. The coalition of news outlets want a judge to strike the section of the Virginia Department of Corrections policy allowing for the curtain, and to block the state from making any other policies that could obscure access to executions in the future.
The lawsuit was brought by The Richmond Times-Dispatch, owned by B&H Media, as well as The Associated Press, The Guardian and Gannet Co., which owns USA Today and several local papers in Virginia. Harold Clarke, director of the Virginia Department of Corrections, is the sole named defendant.
“The First Amendment to the Constitution of the United States guarantees the public an affirmative right of access to certain government proceedings, including a right to witness the entirety of executions carried out by the government,” the 17-page filing states.
The complaint details what is obscured during the execution process for both methods authorized by state.
During lethal injections, a curtain blocks the public from seeing how the inmate is strapped to the gurney and how the IV lines are placed for the drugs to be injected, according to the lawsuit. This prevents the public from being able to see how long it takes to place the IVs and whether the process causes additional pain to the inmate.
Virginia is among several states that use a controversial cocktail of lethal injection drugs, as most pharmaceutical companies stopped offering access to traditional execution drugs in 2016 following public backlash.
Less is known about the electric chair method - an option an inmate may choose if they do not want lethal injection - as details for prepping the inmate are heavily redacted in publicly available prison manuals, the complaint states.
The lawsuit points to media reports on the January 2017 lethal injection of Ricky Gray, who was part of a group of people who murdered two families in south Richmond in early 2006. His death reportedly took over 30 minutes.
Bill Farrar, director of strategic communications for the American Civil Liberties Union of Virginia, said the state’s execution process has always been problematic but it got worse when the new drug cocktail was first used on Gray.
Farrar said in a phone interview that Gray’s execution led to more questions.
“We don’t know what happened,” he said, noting the curtain obscured the public’s view of the process. “Was he struggling? Was he in extreme pain? We have no idea what happened.”
After the ACLU of Virginia raised concerns about Gray’s death, Farrar said, the Department of Corrections expanded its curtain policy, using it for even more of the execution process.
“The cloak of secrecy got worse,” he said. “The public has no way of knowing if [inmates] were mistreated, drugged, malnourished… Having that curtain in place is a stain on the public trust.”
National groups are taking notice of the legal challenge.
Gregory Joseph, program director with the National Coalition to Abolish the Death Penalty, applauded the media organizations for seeking better access to executions.
In a statement pointing to Gray’s “botched” execution, he said any light shed on the process of state-sanctioned killings could aid their cause.
"The more the American people know about all the failures of capital punishment… the more we'll unite and say in one clear voice that now is the time to abolish the death penalty," Joseph said.
Virginia has undertaken a record 113 executions, second only to Texas, since the U.S. Supreme Court reauthorized the practice in 1976. Death row populations in Virginia peaked in the 1990s with almost 60 people awaiting execution by the state. Today, according to local news reports, four people are currently awaiting the death penalty in Virginia.
Requests for comment from The Times-Dispatch, the Virginia Department of Corrections and the offices of Virginia Governor Ralph Northam and Attorney General Mark Herring were not returned by press time Tuesday.
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