Lawsuit seeking more execution transparency in Virginia tossed
A federal lawsuit filed by the Richmond TimesDispatch and other media organizations aimed at allowing official and media witnesses to view Virginia’s entire execution procedures was tossed out Wednesday by a federal judge.
In a 30-page memorandum, U.S. District Judge Robert E. Payne cited decisions in other states and held that the First Amendment does not require that witnesses and the media be able to observe the entire execution process.
While there is a right of access to the adjudication process, it does not extend to the implementation of carrying out a sentence, concluded Payne. The cases he cited included one in Oklahoma and one in Arkansas.
The news organizations sued last year, claiming that the First Amendment guarantees the public a right of access to the entirety of executions. Secrecy surrounding executions has increased in Virginia and in other states in recent years, in part because of the increasing scarcity of the drugs needed to carry out executions by injection.
In addition to The Times-Dispatch, the other plaintiffs are The Associated
Press; The (Staunton and Waynesboro) News Leader, owned by Gannett Co.; and Guardian News and Media LLC, established by The Guardian newspaper in London. The media organizations are represented by the Media Freedom & Information Access Clinic at the Yale Law School and lawyers with the Richmond law firm Christian & Barton LLP.
The Virginia Department of Corrections, represented by the Virginia Attorney General’s Office, asked Payne to dismiss the suit on several grounds.
In its motion seeking dismissal, the attorney general argued that “the First Amendment to the United States Constitution guarantees a right of public access to criminal court proceedings. The United States Supreme Court has made clear, however, that this constitutional right of access does not extend beyond the prison door.
The attorney general’s office added: “For well over a century, Virginia has mandated — by statute — that executions be conducted in private, on the other side of a prison door. Particularly considering that Virginia has long since closed off wholesale public access to executions, there is no First Amendment ‘right’ to witness an execution in this commonwealth. If this were true, states could be compelled to broadcast executions for public viewing, a position that has been universally rejected by every court to have considered it.”
Charles Crain, with the Media Freedom & Information Access Clinic, said: “We’re disappointed, of course, and are discussing how to proceed.”
Department of Corrections policy allows the admission of up to six citizens and four media representatives.
Before 2017, most of the steps in Virginia’s electrocutions had been visible to witnesses. More of the lethal injection procedure had been visible, too, although the placement of IV lines and the electrodes for the cardiac monitor on the inmate has been done behind a curtain.
Prison policy was changed to conceal more after the Jan. 18, 2017, execution of Ricky Gray, which was delayed more than half an hour by activity conducted behind the closed curtain.
Virginia has conducted 113 executions since the U.S. Supreme Court allowed the death penalty to resume in 1976. The toll ties it with Oklahoma for the second most in the country, behind only Texas with 568.