On April 29, 2014 in McAlester, Oklahoma, members of the news media and a handful of other witnesses awaited Clayton Lockett’s execution. Witnesses sat behind blinds that blocked Lockett from their view as officials prepared him for death.
The 6 p.m. execution time came and went, and the blinds stayed closed.
Nearly half an hour later, the blinds open and an atrocity unfolded. Witnesses observed a semi-conscious Lockett lurch and groan as the botched administration of the drugs that were supposed to immediately stop his heart appeared instead to be causing him severe pain.
As he writhed on the gurney, officials closed the blinds and stated that the execution was being stopped. Later that evening the state announced that Lockett was dead. Reporters and by extension the public (which relies on eyewitness accounts from members of the media) were kept in the dark about what happened in the execution chamber. Only weeks later did reporters learn that before the blinds opened — out of their view — a paramedic and doctor attempted and failed to place IV lines in Lockett’s arms, neck, feet and legs.
Lockett is not alone. Inside the chamber, things can and do go wrong. These “botched” executions may run afoul of the Eighth Amendment’s prohibition of cruel and unusual punishment. When prevented from observing everything that happens in the chamber, reporters are unable to inform the public about how executions are carried out, and the public is unable to know whether its government abides by constitutional constraints. Reporters must be allowed to observe the entire procedure, without blinds or curtains, so they — and the rest of us — know what the government is doing in our name.
And many states such as Texas and Alabama continue to restrict witnesses’ access. The executions scheduled for February and March in those states include restrictions on viewing certain preparatory procedures, according to publicly available protocols. Virginia advanced a bill this month in the state legislature to eliminate the death penalty, but that state also limits witness access.
Transparency is especially crucial in the wake of former President Donald Trump’s resumption of federal executions. Though President Barack Obama ordered a review of the death penalty and commuted two federal death sentences, 62 people remained on death row. Trump was able to renew executions at a rapid rate with little resistance.
On the day that the House of Representatives passed the article of impeachment, the Trump administration executed Lisa Montgomery. Two more executions followed, just days before Biden’s inauguration. As Justice Sonia Sotomayor said in her dissent this month to a Supreme Court ruling that greenlit the Trump administration’s 13th execution, the administration succeeded in executing “more than three times as many people in the last six months than it had in the previous six decades.”
Media witnesses to federal executions waited — sometimes for hours — before they could see the condemned prisoner. Reporters were unable to view the placement of IV lines, just as during Lockett’s execution. While the government faced pressure over its execution protocol outside of the chamber, including around its administration of the lethal drug, it acted with impunity behind the curtain.
State and federal restrictions are misguided and antithetical to the democratic process. Media witnesses serve as “the eyes and ears for the public,” Washington Post editor Josh White said, just as they do on “the battlefield, in a foreign land, or in a sports arena.”
The Supreme Court recognized the importance of public knowledge of government functions in a series of cases establishing the constitutional right of access to certain government proceedings. This First Amendment right has afforded the press the right to report on criminal trials and other court proceedings, with the understanding that public access makes those processes function better. Acknowledging the importance of full access to executions, the Ninth Circuit Court of Appeals held that the First Amendment gives the public the right to view the entirety of executions.
Fordham University law professor Deborah Denno has explored how the tradition of public access has actually influenced the executions process — and sometimes serves to change the public’s mind about the means of capital punishment, or even its value. In 1999, when the public saw gruesome photographs of Allen Lee Davis after an electrocution that was badly botched, there was massive outcry. The Florida legislature changed its law to allow the use of lethal injection. And in 2006, news of the botched execution of Angel Diaz prompted then-Governor Jeb Bush to commission an investigation into the lethal injection protocol.
Curtains are used to shield not only the condemned from view but also those responsible for administering lethal drugs. Governments have argued that anonymity may reduce the pressure felt by those carrying out executions and preserve their privacy.
POLICING THE USA:A look at race, justice, media
These considerations are outweighed by a long history of public access to executions and its important check on an overly punitive or capricious government. Reporters who attend executions take part in a tradition of public reporting on executions that traces back to public hangings. UCLA law professor Stuart Banner has demonstrated that this public participation in executions has been present throughout our history, as executions moved from the gallows to the gas chamber and electric chair.
The Trump administration disregarded this history, preventing the public from understanding what happened inside the chamber. Upcoming state executions similarly threaten to leave the public in the dark.
Until the death penalty is fully abolished, however, states and future administrations can exercise the government’s most consequential power in the name of the public. If they do, they must wield it in the open as the Constitution demands.
Anna Kaul and Sarah Lamsifer are third-year students at Yale Law School. They are members of Yale’s Media Freedom and Information Access Clinic which currently represents BH Media Group, Gannett, the owner of USA TODAY, Guardian News & Media, and The Associated Press in a lawsuit challenging limitations on the public’s access to executions in Virginia.