NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.15 Public Access To Executions

The Supreme Court has not ruled on the extent of the public’s access to executions. However, the Ninth Circuit has held that restrictions on the public’s viewing of lethal injections at San Quentin Prison in California until after prison administrations had inserted IV lines and left the execution chamber were an exaggerated, unreasonable response to prison official’s legitimate concerns for the safety of prison staff and violates the public’s First Amendment right to view executions from the moment the inmate is escorted into the execution chamber. California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002).

The Oregon Supreme Court similarly struck down prison rules that limited public viewing of an execution to the lethal injection itself. Oregon Newspaper Publishers Ass’n v. Oregon Dep’t of Corrections, 329 Or. 115, 988 P.2d 359 (1999). The court based its ruling on the interpretation of Or. Rev. Stat. § 137.473 (1999), which allows viewers to “be present at the execution.” The court construed “the execution” to encompass preinjection procedures including connecting monitoring equipment to the prisoner, placing the prisoner in restraints, and inserting the catheter in the prisoner.

The court also ruled that § 137.473 does not grant to the prison the authority to impose nondisclosure restrictions on witnesses whom the superintendent is statutorily required to invite. The superintendent is required to invite one or more physicians, the attorney general, and a county sheriff. Because the court’s holding essentially requires the department of corrections to rewrite its rules, the court declined to rule on whether the nondisclosure restrictions as applied to the capital prisoner’s invited guests are unconstitutional.

California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) (holding prison procedure limiting public viewing of lethal injection execution to time after IV was inserted into condemned inmate was exaggerated, unreasonable response to prison official’s legitimate concerns for safety of prison staff and violates public’s First Amendment right to view executions; affirming permanent injunction prohibiting defendants from prohibiting uninterrupted viewing of executions from moment condemned inmate enters execution chamber until condemned inmate is declared dead).

Lawson v. Dixon, 25 F.3d. 1040 (4th Cir. 1994) (unpublished) (affirming district court’s dismissal of declaratory and injunctive complaint alleging First and Fourteenth Amendment right to videotape execution).

Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977) (reversing district court ruling that press has First Amendment right to televise executions), cert. denied, 438 U.S. 914 (1979).

KQED v. Vasquez, No. C-90-1383 RHS, 1995 WL 489485 (N.D. Cal. Aug. 1, 1991) (ruling press had right to be present at Harris execution in California but no right to film it).

Oregon Newspaper Publishers Ass’n v. Oregon Dep’t of Corrections, 329 Or. 115, 988 P.2d 359 (1999) (holding witnesses to execution have statutory right to view preinjection procedures; holding non-disclosure restrictions cannot be applied to viewers statutorily invited by superintendent).

Halquist v. Department of Corrections, 113 Wash. 2d 818, 783 P.2d 1065 (1989) (en banc) (denying journalist and independent television and radio producer right to videotape execution in Washington state).

Jeff Angeja, Note, Televising California’s Death Penalty: Is there a Constitutional Right to Broadcast Executions, 43 Hastings L.J. 1489 (1992) (arguing broadcast media has constitutional right to televise executions).

John D. Bessler, Televised Executions and the Constitution: Recognizing a First Amendment Right of Access to State Executions, 45 Fed. Com. L.J. 355 (1993) (considering relationship between private execution laws and press and general public, concluding that private execution statutes are unconstitutional under existing authority).

Pamela A. MacLean, Judge Gives Press Right to See Execution, Los Angeles Daily J., Nov. 4, 1996, at A1 (reporting ruling in California First Amendment Coalition v. Calderon, No. 96-1291 by Northern District of California Judge Walker that First Amendment requires reporters must be allowed to observe execution by lethal injection from time needles inserted).

Neil E. Nussbaum, “Film at Eleven . . .”–Does the Press Have the Right to Attend and Videotape Executions?, 20 N.C. Cent. L.J. 121 (1992) (analyzing KQED decision, suggesting why First Amendment might require removal of restriction on videotaping).

Jeff I. Richards & R. Bruce Easter, Retrospective Forum: The Robert Alton Harris Execution: Televising Executions: The High Tech Alternative to Public Hangings, 40 UCLA L. Rev. 381 (1992) (examining current prohibition on televising executions and weighing arguments).

Gil Santamarina, The Case For Televised Executions, 11 Cardozo Arts & Ent. L.J. 101 (1992) (reviewing televised execution cases and arguing First Amendment right to broadcast).

Jerome T. Tao, Note, First Amendment Analysis of State Regulations Prohibiting The Filming of Prisoner Executions, 60 Geo. Wash. L. Rev. 1042 (1992) (reviewing constitutional issues re: televised executions, arguing prohibitions against filming executions should be analyzed as content-based restrictions on First Amendment freedoms and thus unconstitutional).