IS THERE A FIRST AMENDMENT RIGHT OF THE PUBLIC TO VIEW PREPARATIONS FOR EXECUTIONS?
A Recent Ninth Circuit Decision Says Yes, And Implies The Constitutional Need To Televise Executions Too

At the time, I scoffed at the idea. I never bought the deterrence rationale for the death penalty. Moreover, my brother's idea conjured up images of the bloodthirsty mobs of medieval England drooling over the public executions at Tyburn and Newgate. The last "town square" execution in the United States was in 1937. Surely, the end of such public spectacles was for the better.

But a decision last week by the U.S. Court of Appeals for the Ninth Circuit has me rethinking my position - and wondering if my brother might have been right after all.

A First Amendment Right to View an Inmate's Preparation for Lethal Injection

In an opinion by Judge Raymond Fisher, a highly respected and generally moderate Clinton appointee, the Court struck down a California administrative rule that bars public viewing of the initial process by which a death row inmate is prepared for lethal injection. According to the Court, the public's First Amendment right of access to governmental proceedings far outweighs what the court found to be the state's exaggerated concern for the security of the "execution staff."

In some respects, the ruling is hardly earth-shattering. How much difference does it really make whether the attending members of the press are allowed to see not only the final introduction of poisonous chemicals into an inmates body, but also the earlier process by which he is strapped down and fitted with an IV drip?

But even if the stakes may not seem terribly high, deciding the question forces a discomforting confrontation with our reasons for maintaining the death penalty and the legal regime that surrounds its implementation.

The Need for an Informed Eighth Amendment Barometer

The Ninth Circuit identified two rationales for a public right of access to executions.

The first is especially interesting. According to the Supreme Court's interpretation of the Eighth Amendment, the constitutionality of every aspect of the death penalty depends on whether a challenged practice comports with "the evolving standards of decency which mark the progress of a maturing society." In keeping with this standard, the Ninth Circuit asked, how can citizens evaluate use of lethal injection as a method of execution, and thereby form a "standard of decency," without full access to what the methods involves?

Just last term, in the decision banning execution of the mentally retarded, the Supreme Court unequivocally endorsed the idea that the constitutionality of individual aspects of capital punishment is to be assessed according to contemporaneous public sentiment. If public opinion, as reflected in legislative action, shows a trend of disapproval, then that practice no longer meets the Court's "evolving standards of decency" test.

One may seriously question whether it makes any sense for a Court that, in so many areas of constitutional law, disavows the importance of popular sentiment to premise its death penalty jurisprudence on the results of a very crude and unscientific assessment of current moral sensibilities. (In a series of prior columns by FindLaw columnists Akhil Reed Amar and Vikram David Amar, the authors make insightful suggestions as to how refine the method, but even if they were all implemented, it would remain inexact.).

Nevertheless, the "popular sentiment" approach is currently the law. And since that's the law, it seems almost inarguable that the full process of lethal injection must be open to public scrutiny so that the citizenry can make a meaningful moral assessment - on which courts, then, can later rely to interpret the Eighth Amendment.

Put simply: If citizens do not know exactly what lethal injection entails, how can courts trust their opinion as to whether it violates human decency? In particular, without full knowledge by citizens of what lethal injection requires, how could we trust their view that lethal injection is acceptable? In some real sense, they would not really know what it was that they were opining on.

Does A True First Amendment Right to Public Access Mean Televised Access, Too?

Indeed, returning to my brother's claim, it does not seem so far-fetched that, if public opinion is so central to the underlying legality of execution, the government should be providing a television feed to foster an informed public debate.

Such a concept may be macabre. But doesn't the alternative have the practical effect of permitting the ultimate arbiters of what is constitutional in this area - the public at large - to make their decision without looking at the evidence? And isn't that something we would never let judges (who normally perform this function) do?

Does the Catharsis Rationale Imply A Right to View the Entire Execution Process?

As its second rationale for a public right of access, the Ninth Circuit, with unusual candor, explained that public viewing of executions fosters a communal sense of catharsis. "Although this may reflect the dark side of human nature," the Court explained, "the Supreme Court has recognized that the public must be permitted to see justice done, lest it vent its frustrations in extra-legal ways." In short, without the satisfactions of what a skeptic might call execution voyeurism, vigilanteism might occur.

But I have my doubts that this reason for having a system of capital punishment is much advanced by letting a small coterie of reporters observe the preparations for a lethal injection. In terms of communal catharsis, is there a significant difference between a newspaper story simply stating that a given death row inmate died by lethal injection, and the same story with the addition of some graphic details?

If Catharsis Is An Acceptable Rationale, Only Television Can Truly Provide It

The truly significant difference, in contrast, would be between print description, and television depiction, of the execution. And so again, prompted by the Ninth Circuit's reasoning, I am forced to confront my brother's demand for mass media executions. If communal catharsis is the goal, then the closer executions come to prime time the more "effective" they will be.

Indeed, in this respect too, the lack of publicity lets the public - the ultimate sanctioners of capital punishment - off the hook. Execution stories now languish on the back pages of newspapers. Moreover, they often spend as much time or more time recapitulating the inmate's crimes as describing the execution.

As a result, the visceral experience - and depending on your viewpoint, either the visceral cruelty and inhumanity, or the visceral closure and sense of peace - provided by the execution itself is lost.

Televised Executions: The Only Way To Confront the Hardest Death Penalty Questions

As a result of the print-only coverage, and its less than prominent placement, the public is rarely if ever forced to directly confront some basic questions: Is the death penalty merely an expression of the basest desire for revenge, or is it something different and better - or worse? If the point is only revenge, does the death penalty remain an acceptable practice for a so-called "maturing society"?

Televised executions, of course, would pose these questions dramatically and directly. They would also pose a challenge the newspaper stories rarely do: Can the viewer resist sympathy for the inmate being executed? If so, fine. But if he or she cannot, how will the viewer respond to the impulse towards sympathy- by suppressing it, or by becoming a death penalty abolitionist? If sunlight is the best disinfectant, as the rationale for many disclosure laws goes, perhaps television is the best magnifying glass, and mirror.

It may well be that we don't really want to confront the issue of whether Americans in the Twenty-First Century are so very different from the madding crowds of Eighteenth Century England. But if the State is going to claim the moral high ground as it goes about the grim business of meting out death, don't we have some kind of moral duty to test our true motives and act on the results?