June 11, 2012
Ninth Circuit Orders Press Access to Execution
A unanimous three-judge panel of the Ninth Circuit ruled in Associated Press v. Otter that media organizations were "quite likely" to succeed on the merits of their First Amendment claim to witness all stages of Richard Leavitt's impending execution by the State of Idaho. The lower court since granted the media organizations' motion for a preliminary injunction and thus required the state to allow the organizations to witness all stages of the execution.
The state had denied the media access, despite a 2002 ruling by the Ninth Circuit the "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those 'initial procedures' that are inextricably intertwined with the process of putting the condemned inmate to death." California First Amendment Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002). The state argued that it had legitimate penological interests in preserving the condemned prisoner's privacy and dignity, respecting the sensibilities of the condemned prisoner's family and fellow death-row inmates, and protecting the anonymity of the members of the medical team who participate in the execution.
The court rejected these:
The State of Idaho already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death. It strains credulity for the State to assert that these interests will be offended to a meaningfully greater degree when witnesses are permitted to watch the insertion of intravenous lines than when they are simply allowed to watch the inmates die. The State also has not explained why these interests were not equally at stake in California, although our opinion in California First Amendment Coalition did not explicitly consider them.
Op. at 7.
As to protecting the anonymity of the executioners, the court already rejected this interest in California First Amendment Coalition, and the state here failed to show why its interest was any different or greater. The court said that the execution team could be protected by wearing surgical garb, and any threat to their anonymity was based on pure speculation.
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