A federal judge heard arguments Thursday afternoon to dismiss a lawsuit brought by several media outlets over the right to observe executions in California and quickly ruled against dismissal.
The lawsuit, filed by 48 Hills, KQED, and the Lost Angeles Times in April, argues the press has the right to observe every stage of an execution as a surrogate of the people, but key parts of the execution process currently take place behind closed doors.
Judge Richard Seeborg did not issue a ruling from the bench but filed his decision today. It clearly states that the plantiffs have a valid claim that the press, as the representative of the public, has a right to view all parts of the execution process, including the mixing of the chemicals and the medical intervention if the condemned inmate doesn’t die from the lethal injection.
Current execution protocols say an inmate may be injected up to three times with a lethal dose of an approved chemical. If three doses not kill the prisoner, the execution is halted, and “medical assistance” is provided. But at that point the curtain is closed and whatever medical assistance take places happens with no observers.
“Rendering medical aid isn’t part of the execution,” said Deputy Attorney General Jay Goldman, representing the California Department of Corrections and Rehabilitation. “By definition, they’re trying to aid.”
Goldman said inmates have the right to privacy, and at that point the inmate is not in the “execution process.” Keeping the curtain open, he said, violates the prisoner’s right to medical privacy.
As part of providing medical assistance, the inmate may be transferred to a hospital, he said.
“Does the press get to ride in the ambulance to the ER?” he asked. “If you get to that point you know the execution process didn’t succeed, and the execution process is what they’re able to watch.”
Judge Seeborg wasn’t convinced. If an execution is suspended and medical aid is provided, but the inmate dies shortly thereafter, it could be argued the death is directly related to the execution, he said.
“You’re saying that essentially the execution (process) is constrained by the actual injection of the chemicals … even if the inmate dies from the effects of being injected with all those chemicals, and even if the inmate does not die immediately,” he said. “That’s why it gets a little fuzzy for when the execution ends” – and the people are entitled to see the end of the process.
In his ruling, he notes that
At the hearing the State repeated argument that [a previous case] does not go as far as a right of access to observe things outside the execution process, including medical assistance in this case because the intent changes from attempting to execute to attempting to provide medical aid. This argument, however, appears to be premised on the flawed notion that the condemned is no longer at risk of dying as a consequence of the execution process being suspended.
Attorney Christopher Sun, arguing for the plaintiffs, said the state is trying to prevent the public from observing the consequences of a failed lethal injection, and that observing the chemicals failing to kill the inmate is when the right of access is most important.
“The public has a right to witness what happens when something goes wrong and not rely on the state’s representation,” he said.
The lawsuit also seeks the right to observe the preparation of chemicals for injection, which under current execution protocols takes place three hours earlier and out of view. Sun said if the mixing of chemicals is observable, the state would have more of an incentive to do it properly.
Goldman said there’s no tradition in the 40 years of lethal injections of the public observing the preparation of the chemicals – or before that, of observing the gas canisters. Or even before that, “of the rope being examined by the public to look at the efficacy and relative painlessness of using that type of rope.”
“What are they going to look at?” argued Goldman. “What are they going to see that would tell them there is going to be a problem or mistake?”
But we know mistakes in the execution process happen – and we know that since California has had trouble finding execution drugs that aren’t expired, the potential for problems with the pre-execution process is very real.
In the past few years alone, several executions carried out by lethal injection in other states have not gone according to plan. In 2014, a condemned inmate in Arizona reportedly gasped for breath for more than 90 minutes before being pronounced dead.
We also know the state currently doesn’t have a reliable supplier of either of the two chemicals – thiopental or pentobarbital – that the current execution protocols allow to be used. Thiopental is not sold in the US and by law can’t be imported into the country, and FDA approved manufacturers of pentobarbital won’t sell it for use in executions.
So how the chemicals are obtained and mixed – and whether the technicians in fact have unexpired containers the come from a legitimate source – ought to be something the public understands.
The case will now move forward – and the judge’s ruling on the issue of dismissal seems very favorable to the news media groups’ overall arguments.