9th Circuit Says Witnesses Have Right To Hear Executions In Arizona

By Jimmy Jenkins
Published: Tuesday, September 17, 2019 - 2:23pm
Updated: Tuesday, September 17, 2019 - 2:47pm

A ruling from the 9th U.S. Circuit Court of Appeals issued Tuesday means Arizona will become the first state required to allow the press and the public to hear what happens during an execution.

“We conclude that the First Amendment right of access to governmental proceedings encompasses a right to hear the sounds of executions in their entirety,” the judges wrote. “We also conclude that on the facts alleged, Arizona’s restrictions on press and public access to the sounds of executions impermissibly burden that right.”

The judges reversed one lower court ruling and upheld two others in an appeal brought by seven Arizona death row inmates and the First Amendment Coalition of Arizona.

“We determined that public viewing of executions in their entirety is rooted in historical tradition and that public observation plays a significant role in the functioning of capital punishment,” Judge Paul Watford wrote in the majority opinion.

“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,” Watford said. “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.”

The plaintiffs argued they had a constitutional right for witnesses to hear their entire execution. Currently, witnesses view executions from an adjacent room. As executions begin, witnesses hear audio provided from a microphone and view the proceedings on a closed-circuit monitor.

The Arizona Department of Corrections then opens a curtain as the drugs are administered to give witnesses a direct view of the inmate, but the microphone is turned off.

Arizona’s lethal injection execution of Joe Wood in 2014 took two hours. Reporters and other witnesses said they could see Wood sit up after he had been sedated and appeared to be gasping for air. They could only hear the gasps when Department of Corrections officials turned on a microphone in the execution chamber to make announcements.

The 9th Circuit ruled Tuesday that Arizona must keep the microphone on throughout the execution.

Watford said witnesses have a right to hear an execution and “Arizona’s restrictions on press and public access to the sounds of executions impermissibly burdened that right.”

Watford said that while the 9th Circuit had rejected challenges to Arizona’s death penalty process in the past, the state has come “perilously close” to falling outside of what are considered constitutional standards.

Watford wrote that the court’s concerns “have largely involved the shroud of secrecy surrounding Arizona’s execution proceedings.” He said the lack of information provided by the Department of Corrections has “hampered judicial review and public evaluation of the process.”

Assistant Federal Public Defender Dale Baich says the ruling will help to lift that shroud of secrecy.

“This will lead to a more complete and comprehensive coverage of executions,” Baich said. “It makes the process even more transparent than it already is.”

Baich, whose office represents people on death row in several states, said courts have placed more of a burden on prisoners over the past 10 years when they challenge lethal injection protocols.

“So it’s important for them to obtain information from the state when they make those challenges,” Baich said. “If the state does decide to go forward with executions and it continues to withhold information, the question has got to be asked: ‘What does the state have to hide?’”

The plaintiffs alleged they also had constitutional rights to know more information about the source and quality of the execution drugs as well as the qualifications of the staff that would administer the drugs. The 9th Circuit judges denied those claims, keeping in place lower court rulings.

In a dissent to part of the ruling, Judge Marsha Berzon said she “wrote separately to call attention to the inmates’ plausible allegations that Arizona, through its deliberate concealment of information about its execution process, has violated their First Amendment right of access to the courts.”

Berzon accused Arizona of “deploying a range of strategies to obstruct any effort to understand the difficulties which plague its executions.”

“The inmates have plausibly alleged that Arizona has concealed information in a deliberate effort to limit their ability to litigate the conditions under which they will be put to death,” Berzon said. “If that is true, then Arizona has actively interfered with rights protected by the First Amendment.”

“It may well be too late for Joseph Wood and Robert Towery to vindicate their First Amendment rights of court access or their rights to due process of law,” Berzon cautioned.

“If nothing changes, it might soon be too late for some remaining plaintiffs, as well,” Berzon said.

There are currently 116 people on death row in Arizona. Fourteen of them have exhausted the appeals process. It’s unclear if the state currently has enough drugs to proceed with lethal injections.

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