Georgia Court Case Tests the Limits of Execution Secrecy in the United States

Posted in: Constitutional Law

Georgia plans to put Willie James Pye to death on March 20, in the state’s first execution since January 2020. The state wants to hide as much of that event as possible and, in so doing, to push the limits of execution secrecy in this country.

Its plan is a bold departure from the history of American executions. In that history, the public and the press traditionally have been welcomed as spectators.

Secrecy of the kind that Georgia law now allows rightly invites suspicion. What is it that Georgia doesn’t want the press to witness and the public to know, and why does it want to restrict what the press can see and hear when it puts Pye to death?

That question is at the heart of a lawsuit filed on March 8 in the Superior Court of Fulton County by the American Civil Liberties Union on behalf of The Appeal, a “nonprofit news organization dedicated to exposing how the U.S. criminal legal system fails to keep people safe and perpetuates harm.” The suit claims that Georga’s lethal injection protocol, with its severe restrictions on press access, violates the First Amendment of the United States Constitution as well as the Georgia Constitution.

It asks the court to declare that the imposition of “restrictions on media witnesses’ visual and auditory access to the execution process” is unlawful and to stop the state from carrying out any executions until it removes the restrictions on that access.

This case tests the limits of execution secrecy. The court should grant The Appeal’s request and insist that if Georgia wants to execute anyone, it must respect the public’s right to know and the right of the press to cover any execution fully and completely.

Of course, Georgia is not the only death penalty state which now treats executions as if they were private affairs and severely limits what the public can know about them. Execution secrecy laws began to appear in the 1990s, mandating secrecy about the identity of the executioner.

For example, in 1992, the Kentucky state legislature passed a statute that read, “The identity of an individual performing the services of executioner shall remain confidential and shall not be considered a public record.” But it would be another two decades, propelled by difficulties in securing lethal injection drugs, before laws like Kentucky’s became the norm in other death penalty states.

Since 2010, 14 states have enacted laws that extend and intensify secrecy surrounding executions. Those laws have varying degrees of specificity, but all prohibit the disclosure of the identity of the executioner and others directly involved in carrying out executions.

They also cover crucial details about the drugs themselves, including in some instances the type of drugs used in executions, details about the drugs’ makeup, information about the drug cocktail or combination and how it was developed, and the identities of lethal injection drug suppliers.

Idaho’s secrecy law, which was passed in February 2022, makes the identities of “[a]ny person or entity who compounds, synthesizes, tests, sells, supplies, manufactures, stores, transports, procures, dispenses, or prescribes the chemicals or substances for use in an execution or that provides the medical supplies or medical equipment for the execution process” confidential and inadmissible as evidence in court.”

As my collaborators Theo Dassin, Aidan Orr and I wrote in 2023, “Of the death penalty states that have carried out lethal injection executions since 2010, all withheld some information about the execution process.” As the suit brought by The Appeal notes, Georgia prohibits any witness from seeing or hearing what is done in the two hours leading up to an execution, including preparation of the drugs and the execution equipment.

It permits only a single media witness “to visually observe the final preparatory steps taken before the lethal injection is administered.” Georgia further limits access during the time in which the condemned is being prepared for execution.

It prevents any media witness from having audio access to this part of the execution process so that the press cannot hear what is being said while members of the execution team try to insert an IV.

The suit notes that if a problem arises with the administration of the lethal injection drugs, media witnesses have no audio access to communications concerning these problems because state officials turn off the microphone in the execution chamber. “If the condemned prisoner show signs of life after the lethal injection drugs are administered (media witnesses) cannot see what if any additional chemicals are being injected,” and they cannot hear how old condemned reacts or what execution team members say as the execution unfolds.

Limiting access to the sights and sounds of an execution as it unfolds serves no legitimate state interest. The state of Georgia, the suit alleges, has acted in an arbitrary way in deciding “what portions of the execution process…[it] will allow media witnesses to see and hear.”

This action denies the public “access to observe-both by sight and sound-the entire government proceeding.” As the Death Penalty Information Center notes, laws like Georgia’s leave “the public to speculate as to why it took prison personnel extended periods of time to set the IV lines in a number of recent executions.”

Audio censorship, the DPIC says, “masks the sounds witnesses can hear during the process, leaving the public to wonder whether a prisoner is gasping versus snoring, gurgling versus choking, or verbally expressing pain during the execution process.”

Georgia’s plan exposes the shame that now attaches to the practice of state killing. Today, the New York Times rightly observes, “Capital punishment does not operate in the land of reason or logic; it operates in a perpetual state of secrecy and shame.”

The Superior Court of Fulton County has a chance to lift the secrecy if not end of shame of Georgia’s plan to kill Willie James Pye.

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