Pa. newspapers seek full access to execution

The Pennsylvania Department of Corrections’ protocol for executions violates the First Amendment-based right of public access to judicial proceedings, two local newspapers argued in a lawsuit filed against the agency earlier this week.

The Philadelphia Inquirer and The (Harrisburg) Patriot-News argued in the complaint, filed Wednesday in the U.S. District Court in Harrisburg, Pa., that witnesses to an execution should be able to view the entire process, “from the moment the condemned enters the execution chamber through the time the condemned is declared dead.” The suit also asserts that witnesses should have the opportunity to hear the condemned's final statement.

“In order for the citizens of Pennsylvania to engage in the debate about how the government imposes criminal punishment, they have to have complete information about what goes on in the execution chamber,” Pittsburgh attorney Stephen Shapiro, who represents the papers with attorneys for the ACLU of Pennsylvania, said in an interview. “It’s impossible for the public to conclude that the government conducts executions properly or improperly if you don’t know what’s going on behind the curtain.”

Under the current procedure in Pennsylvania, witnesses may see the condemned only after he or she is strapped to the injection table inside the execution chamber. According to the complaint, the process prevents the witnesses from observing the demeanor of the condemned and staff, whether any force is required to strap the condemned to the table, if the inmate experiences any pain during the procedures and whether the guards or lethal-injection team undertake any measures to comfort or taunt the condemned.

The inmate also does not have an opportunity to give a final statement to witnesses. Under the current procedure, he or she may write one that will be read after the execution.

“Our clients, whose job it is to report information about executions to the public, brought this suit to make sure the public gets a complete picture of what happens in the execution chamber so they can make the decision about whether the processes are proper or not,” Shapiro said.

The complaint relies heavily on a 2002 case decided by the U.S. Court of Appeals in San Francisco (9th Cir.), in which the court held that the California Department of Corrections’ execution policy violated the First Amendment. The Ninth Circuit reaffirmed that ruling in June in The Associated Press v. Otter, which addressed Idaho’s execution policy.

In Otter, the court, quoting from its 2002 opinion, rejected the state's argument that various penological interests outweighed the public's right under the First Amendment "to view executions from the moment the condemned is escorted into the execution chamber, including those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death.”

“What we’re asking for is incredibly simple: open the curtain earlier than the policies say,” Shapiro said. “It’s very easy to accomplish and doesn't impose any burden on the Department of Corrections.”

The lawsuit was filed a week before Terrance Williams, who was convicted in a 1984 murder, was scheduled to be executed. The execution would have been the first in 13 years in Pennsylvania. A state judge today issued a stay in the execution, citing new evidence that needed to be considered.

Shapiro said the stay does not affect the newspapers’ challenge, which has not yet been scheduled for a hearing. In conjunction with the complaint, the papers filed a request for a temporary restraining order and preliminary injunction that would bar Williams' execution, as well as that of one planned for November, until the court has ruled on the papers' complaint.

Related Reporters Committee resources:

· Dig.J.Leg.Gd.: From the First Amendment Handbook – Access to Courts