ACLU Challenges San Quentin's Secret Execution Procedures

February 14, 2000 12:00 am

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SAN FRANCISCO — The American Civil Liberties Union of Northern California goes to federal court today to argue that journalists and public witnesses have a First Amendment right to witness executions in their entirety and that there is no evidence that media presence jeopardizes prison security or the safety of prison personnel.

The case, California First Amendment Coalition v. Calderon, is being argued today before U.S. District Court Judge Vaughn Walker. The trial begins only weeks before California’s next execution, now scheduled for March 15.

“It is crucial for public witnesses to see this most irrevocable of governmental acts in its entirety, without the mediation of prison PR people,” said Peter Sussman, former president of the Society for Professional Journalists, Northern California Chapter, which is a plaintiff in the case.

“It’s not a role anyone can relish, but it’s essential if the citizens of this state are to be kept informed about the awesome powers exercised in their name,” Sussman added. The Society for Professional Journalists is a non-profit association of 250 members, including print reporters and writers, in the northern California area.

The ACLU originally filed the lawsuit on April 9, 1996 after William Bonin became the first person in California to be executed by lethal injection. Reporters and other witnesses to Bonin’s execution were prevented by San Quentin prison officials from observing his entry into the chamber and how prison officials strapped him to the gurney and attached the execution apparatus.

Unable to offer first-hand accounts of the entire process, including the difficulties prison officials admitted they encountered in inserting intravenous tubes, the journalists could not thoroughly inform the public on the execution. As a result, the ACLU says, the public had to rely solely on prison officials for information about how the death penalty is being implemented by this new method of execution.

The courts had at first agreed. On May 1, 1996, the U.S. District Court issued a preliminary injunction enjoining prison officials from restricting witness observation of executions. Ten months later, Judge Walker issued his ruling that public witnesses — including the media — have a constitutionally protected right to observe executions and that there was no evidence that media presence jeopardizes prison security or the safety of prison personnel.

But the Department of Corrections appealed and, in 1998, the Ninth Circuit Court of Appeals reversed Judge Walker’s ruling. While not denying the existence of a First Amendment right, the Court of Appeals remanded the case to the District Court for a trial regarding whether the restrictive witness procedures are an exaggerated response to prison security concerns.

“Prison officials claim that they intend to pull the curtain if problems occur during the execution, fearing that their actions might be ‘misinterpreted by the media,'” said Alan Schlosser, Managing Attorney for the ACLU of Northern California. “Their desire to present a sanitized view of capital punishment is inconsistent with the First Amendment’s guarantee that the public be kept informed of this final act of the criminal justice system.”

Another member of the legal team, attorney David Fried, said that San Quentin’s concerns that execution team members may become targets of retaliation are not based on fact.

“Since 1938, when the first gas chamber execution was carried out, there has not been any evidence of a security risk or threat against prison staff,” he said. “If prison officials are concerned about the security of their staff, there are reasonable steps they can take, including the use of protective surgical garb, or tinting to plastic face shields already used by prison guards.”

Attorney Michael Kass of Pillsbury, Madison & Sutro LLP, said that until the 1996 execution of Bonin, the unbroken historical practice was that witnesses to executions, including several members of the media, had an unobstructed view of the inmate from the moment the inmate entered the execution area or chamber.

“It is critical that journalists continue to witness the entire execution and act as the eyes and ears of the public,” Kass said.

Witnesses who will testify on behalf of the First Amendment Coalition include Jason Beaubien, a former KQED radio reporter who witnessed the Bonin execution and the Keith Daniel Williams execution, and Lonny Jay Shavelson, M.D., an emergency medicine doctor. Dr. Shavelson will testify regarding the use of surgical protective clothing during an execution.

In addition to Fried, Kass and Schlosser, the California First Amendment Coalition, a non-profit association of more than 160 California newspapers and TV and radio stations, is also represented by Jeffrey Ross of Pillsbury Madison & Sutro LLP and Lynne S. Coffin of the Law Offices of Coffin & Love.

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