ACLU Sues Oklahoma for Shielding Press During Execution

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 25, 2014

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In the wake of Oklahoma’s botched execution of convicted murderer Clayton Lockett in April, the American Civil Liberties Union (ACLU) has filed a lawsuit which alleges that the press has a First Amendment right to view lethal injections.  The suit, filed on behalf of two media outlets, requests that Oklahoma be banned from “censoring, limiting, or hindering the ability of lawful witnesses” to view the execution process.

Press Shielded from Lockett Execution

Clayton Lockett’s failed lethal injection gained national attention this April, increasing scrutiny paid to the death penalty process used across the country.  Lockett did not die immediately upon receiving his lethal dose, but instead suffered a fatal heart attack 40 minutes later, with the interim period filled with episodes of groaning and writhing in apparent pain.  Members of the media present were shielded at two critical periods of the execution: first, during the placement of Lockett’s IV – a process that took close to an hour and required several attempts – and again towards the end of the execution when doctors and prison officials realized something had gone wrong. 

The execution was called off a full 17 minutes after prison officials shielded the public from continued viewing, and Lockett died 10 minutes later.  Underlying the complaint is the concern that members of the media were deprived from reporting about the two key periods of Lockett’s execution when it appears he suffered, which, more broadly, could have raised questions about execution by means of the particular lethal injection process used by Oklahoma and other states across the country. The ACLU lawsuit alleges that in order to provide the necessary public oversight of the entire lethal injection process the press is entitled to all aspects of the death penalty, and as such Oklahoma’s decision to shield portions of the Lockett execution were in violation of the constitution and state law. 

First Amendment Protects Public Access to Executions

Under the First Amendment, the public, through the media, has a right of access to government proceedings such as administration of the death penalty.  As the final stage of the criminal justice system, executions are the ultimate exercise of government authority that have divided public opinion for decades, and the right to view lethal injections is critical to the ongoing public oversight which is necessary to provide citizens with sufficient information to vote for or against death penalty proposals.  By holding a state accountable for the manner in which it carries out executions, the public is able to impact death penalty legislation and have a say in the lawfulness of the controversial practice.

Both the judiciary and legislature have reinforced the public right of access to death penalty proceedings, and Oklahoma has state laws that accordingly make accommodation for a select number of reporters to attend lethal injections.  The Lockett case dispute between Oklahoma prison officials and the ACLU comes as a result of the selective shielding of April’s lethal injection, which hid from the press key moments of his failed execution and final cause of death.

ACLU Argues Press has Right to Witness Entire Death Penalty Proceeding

In its lawsuit, find here, the ACLU cites support of the public’s right to access death penalty proceedings found in First Amendment law and Oklahoma state statutes to conclude that members of the press are entitled to view the entire lethal injection process.  Taking issue with the decision to shield access to portion of Lockett’s execution, the lawsuit alleges:

“The press and public received only truncated access to the execution proceeding. The press was unable to observe Lockett’s final moments or eventual death. As a result, the public was deprived of objective accounts as to whether, at the time of his death, the State was still attempting to execute Lockett, or in the alternative, attempting to provide medical care after calling off his execution.”

According to the ACLU, Oklahoma erred by shielding the press from critical events during the period in which doctors inserted the IV and the period between the execution being called off until Lockett’s death some 40 minutes later.  A federal judge for the US District Court in Oklahoma will asked to declare that the press’s right of access extends for the duration of the death penalty process – from injection to termination – and issue an order preventing the state from shielding public viewing in future executions. 

Oklahoma officials have not yet responded to the lawsuit, the results of which could impact other states facing scrutiny of their lethal injection procedures. 

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