As opposition to the death penalty has grown in recent years, some execution states (including California under Proposition 66) have gone to great lengths to protect their sordid practice in part by trying to hide exactly what it is they are doing.
Arizona, for instance — which spent nearly two hours executing Joseph Wood in 2014 — has adopted a set of laws and procedures that let it shut off the microphone in the death chamber after the insertion of intravenous lines so witnesses can see but not hear what’s happening, mask the sources of the execution drugs they use and keep secret the names and credentials of the people who are conducting the executions on behalf of the people of Arizona.
Yes, there have been legal challenges, and on Tuesday the U.S. 9th Circuit Court of Appeals reopened a window into Arizona’s execution practices by saying the microphones must be left on.
“Execution witnesses need to be able to observe and report on the entire process so that the public can determine whether lethal injections are fairly and humanely administered,” Judge Paul J. Watford wrote for the three-member panel. “Barring witnesses from hearing sounds after the insertion of intravenous lines means that the public will not have full information regarding the administration of lethal-injection drugs and the prisoner’s experience as he dies.”
But the court also ruled that the public and the condemned do not have a First Amendment right to know what drugs are being used and who’s administering them, a ruling that in effect forces the public to take the state government at its word that it’s using suitable drugs and trained personnel.
Or to look at it another way, the public gets to hear the execution but not know the details of how it’s being carried out, including whether the people conducting the execution know what they’re doing.
So much for public accountability.
The court did suggest that the lawsuit by several condemned inmates and the First Amendment Coalition might have had more success if they had invoked a violation of due process rather than the First Amendment right to access government information.
It also cast a cold eye on Arizona’s history of conducting executions.
“Given Arizona’s checkered past with executions, we are troubled by the lack of detailed information regarding execution drugs and personnel,” Watford wrote. “Such information would undoubtedly aid the public and death-row inmates in monitoring the constitutionality of Arizona’s execution proceedings. However, as the Supreme Court has held, the 1st Amendment does not mandate the disclosure of ‘all the information provided by (freedom of information) laws.’ Thus, although the inmates may be able to assert a procedural due process right to obtain the information they seek … neither the inmates nor the First Amendment Coalition possesses such a right under the First Amendment.”
That reads like an invitation to sue anew, and the plaintiffs ought to take the court up on it.
Beyond the legal issues of which amendment might be invoked, it is appalling for states to conduct such barbaric acts in the name of the people without providing as much transparency as possible.
Proponents of these secrecy measures argue that anti-death penalty activists might demonstrate outside the pharmacies that provide the lethal injection drugs, and that those directly involved in the executions might get harassed (although there already are laws to guard against that).
As for the pharmacies or other businesses that provide the execution drugs, they are willingly selling goods to public agencies to be used in conducting the public’s business. Barring an argument that somehow identifying the vendors would compromise trade secrets, there is no presumption of privacy here. And fearing that members of the public might object to the sales isn’t cause to drive business that should be conducted in sunlight deep into murky shadows.
Similarly, the public has a legitimate interest in being able to ensure that the government is not cutting corners when it deputizes people to kill in our name. Notably, these aren’t issues of national security in which making public the names of those involved would imperil the national interest or foreseeably endanger lives.
If the work at hand is so shameful those engaged in it fear public repudiation, then maybe the work shouldn’t be done in the first place.
Scott Martelle, who joined the Los Angeles Times editorial board in 2014, is a veteran journalist and author of six history books. He wrote this for the Los Angeles Times.