Two news organizations, including one from Oklahoma, and a freelance journalist are suing the state Corrections Department, alleging the decision to close the blinds on a botched April execution violated the First Amendment rights of both the public and media witnesses.
The federal civil lawsuit was filed Monday morning in Oklahoma City federal court. In the lawsuit, the national office and the Oklahoma chapter of the American Civil Liberties Union, the Guardian US, The Oklahoma Observer, and freelance journalist Katie Fretland contend that closing the blinds midway through the execution of Clayton D. Lockett kept the media, and by extension the public, from witnessing what they say is the most powerful governmental procedure: the taking of a life.
No matter your opinion on capital punishment, the public has a constitutional right to know how the state carries out executions, ACLU staff attorney Lee Rowland said.
“This is a case that everyone, regardless of their views on the death penalty, even supporters of the death penalty, should agree that the state should not be exercising its most awesome power in the shadows, outside the view of the press and the taxpayers,” Rowland said. “Those who support the death penalty should have the confidence that the process is being carried out lawfully.”
A spokesman for the state Corrections Department declined to comment Monday.
The journalists involved in the lawsuit are seeking an injunction, asking that lethal injection be a more transparent procedure. They are attempting to put in place a restriction on closing the blinds during an execution and to require corrections departments to allow the press to witness the placement of the inmate’s IV.
“The more immediate goal of the case is really more about the curtain, so to speak,” said Brady Henderson, legal counsel for the Oklahoma chapter of the ACLU. “It’s about lifting it. It’s about making sure that press witnesses have the full access that they should. But, I think of course the larger goal is transparency as a whole. And, that transparency of course applies, whether or not things are going as planned, or whether they’re going awry, like they were in Lockett’s case.”
Focus in national debate
Lockett writhed, grimaced, mumbled, and shuddered during his April 24 execution, which became a focal point of the national debate over the constitutionality of the lethal injection process and the secrecy laws surrounding the sources of the drugs used. The blinds were closed 16 minutes into Lockett’s execution, and media witnesses were escorted out minutes later. A brief timeline of the execution released by the Corrections Department reported Lockett died 43 minutes after the beginning of the procedure of an apparent heart attack. His death and the majority of the execution were not witnessed by the media.
Members of the execution team had trouble locating a viable vein. Oklahoma’s execution protocol states that lethal injections in Oklahoma utilize two veins, one in each arm of the condemned. Lockett’s execution was carried out using only the femoral vein in his groin.
An independent autopsy later concluded the IV was improperly set, causing the drugs to leak into Lockett’s muscle tissue and leading to a failed lethal injection. Lockett was executed using a three-drug mixture never before used in the United States.
“I think journalists should be able to report on whether the procedure is competently performed by someone with the necessary specialized medical training,” said Fretland, who was one of the media witnesses at Lockett’s execution.
Fretland said censoring portions of Lockett’s lethal injection undermined the legitimacy of the process.
“The state shouldn’t be permitted to selectively make available the cruel or unusual moments of an execution,” she said. “We need to see the entire thing.”
The Corrections Department does not comment on pending litigation, spokesman Jerry Massie said. He also declined to comment on a review of execution protocol, which began following Lockett’s execution.
Similar cases have been successful in the past. In a 2002 decision, the Ninth Circuit Court of Appeals found restrictions on viewing lethal injection executions at the San Quentin State Prison in California were “exaggerated, unreasonable” and restricted the public’s First Amendment rights.
Such a precedent in federal court bodes well for the suit filed Monday, said Richard Dieter, executive director of the Death Penalty Information Center.
“Ultimately, these are public access (issues),” Dieter said. “This is about our democracy, fundamental constitutional issues that I think everyone does agree on. In the end, it’s not going to depend on state laws or regulations.”
The state’s next execution is scheduled for Nov. 13, when Charles Frederick Warner will be put to death for the rape and murder of his girlfriend’s 11-month-old daughter in 1997.
CORRECTION: An earlier version of this article said the blinds were closed 13 minutes into Lockett's execution.