Government can't mute executions, 9th Circuit rules

The public may not be prevented from hearing the sound of a prisoner being put to death, a 9th U.S. Circuit Court of Appeals panel held Tuesday in an appeal that suggested Arizona's lethal injection protocol inflicted needless pain on condemned convicts.

The panel invoked First Amendment protections rather than the "cruel and unusual" theories more common in capital punishment challenges and concluded the amendment known to ensure free speech also allows witnesses to freely hear the ultimate stages of a government-sanctioned execution.

"[T]he First Amendment right of access to governmental proceedings encompasses a right to hear the sounds of executions in their entirety," read the opinion authored by Circuit Judge Paul J. Watford.

Seven death row prisoners and the First Amendment Coalition of Arizona challenged the state's practice of muting execution chamber microphones as the convicts received lethal injections and perished, sometimes in protracted, agonizing fashion. Witnesses in an adjoining room could see -- but not hear -- the act through a soundproof window.

During the 2014 execution of Joseph Wood, an original plaintiff in the case, Arizona's policy kept witnesses from fully perceiving nearly two hours of apparent anguish as prison officials administered to Wood 15 doses of the state's injection regimen, though protocol denoted two should suffice.

Assistant Federal Public Defender Dale A. Baich, part of the team representing the plaintiffs, said the ruling will allow the public a better understanding of an execution method he said is perhaps not as humane as some assume.

"It's important because during Joseph Wood's execution witnesses could see Mr. Wood struggling, but they only got snippets of the sound," Baich said, referring to moments when prison officials turned on the execution room's microphone to relay updates on Wood's status.

Watford referenced similar reasoning in concluding only a complete sensory experience of Arizona's execution method could give the public a full appreciation of how its elected officials administer justice.

"Execution witnesses need to be able to observe and report on the entire process so that the public can determine whether the lethal injections are fairly and humanely administered," read Tuesday's opinion, which articulated a constitutional rule no other circuit has yet crafted.

"Under the First Amendment, the default should be open access to government proceedings so that the people may properly evaluate the government's activities," said First Amendment expert Jean-Paul Jassy, of Jassy Vick & Carolan. "That rule holds particular force where the government is taking a life."

"The question should not be what does the public have an interest in, but what does the government have the ability to keep from the public," added Gregg Leslie, executive director of the Sandra Day O'Connor College of Law First Amendment Clinic. "The answer is, very little. This is the ultimate stage in the justice system, where the government executes someone for their crimes, and the public has a great deal of legitimate interest in knowing all about the process."

The panel blocked a second First Amendment argument pursued by the plaintiffs claiming Arizona needed to give greater detail on executioners' qualification and on sources of lethal injection pharmaceuticals, shortages of which have led states to become more opaque about their provenance. Watford admitted the panel was less than sanguine that the First Amendment didn't allow for a different result.

"Given Arizona's checkered past with executions, we are troubled by the lack of detailed information regarding execution drugs and personnel," he wrote. First Amendment Coalition v. Ryan, 2019 DJDAR 8989.

On the latter issue, Circuit Judge Marsha S. Berzon dissented, declaring that Arizona had "obtained its lethal injection drugs illegally or administered them in unauthorized dosages," and it was "deploying a range of strategies to obstruct any effort to understand the difficulties which plague its executions."

Leslie agreed additional transparency was necessary on the sourcing of lethal injection drugs.

"We cannot say it's OK for the government to limit access to this information just in the interest of avoiding being questioned about how it administers lethal drugs," he said. "The people in whose name the execution is carried out want to know how the process works and what drugs are used, not because of some general curiosity, but out of a legitimate interest in knowing if this process is cruel and unusual or is carried out in a humane manner."