State prison system moves to limit media’s suit on executions

California prison officials have asked a federal judge to dismiss most of a lawsuit by news organizations seeking more public access to state executions, which could resume soon for the first time since 2006.

The suit, filed April 11, challenges the prison system’s decision to block witnesses’ and reporters’ views of a room at San Quentin where staff members prepare the lethal drugs and inject them into tubes that flow into the body of the condemned inmate. The suit also contests the prison’s plan to pull the curtain if the execution fails, preventing the witnesses from seeing medical staff attempt to revive the inmate.

In papers filed Thursday in federal court, lawyers for the state Department of Corrections and Rehabilitation argued that members of the public have no legal right to view the preparations for an execution or medical actions after a failed execution.

San Quentin had previously kept its death chamber curtains closed while guards strapped the inmate down and inserted injection tubes, until a federal appeals court ruled in 2002 that the closure violated the public’s constitutional right of access to government proceedings. But the state’s lawyers said the ruling covered only the execution itself and not the preparations or the aftermath.

The media lawsuit fails to show that “historically, either in California or in other states ... the public has been able to view the preparation of chemicals or the provision of medical treatment of a condemned inmate when an execution is discontinued,” the prison system’s lawyers said.

They said access to an execution does not include drug preparations that start three hours earlier, or medical treatment after a failed execution.

“Efforts to treat an inmate are not efforts to execute him,” the state’s lawyers said. “The public has no right to observe inmate medical treatment in any context,” and drawing the curtain at that point would protect the inmate’s “privacy and dignity.”

In their lawsuit, the news organizations argued that closing the curtain prevents the public from seeing part of the execution process — the prison’s response when things fail to work as planned. They said sealing the preparation room prevents witnesses from seeing which of two available drugs is selected, how it is prepared and administered, how many doses are used, and “how effectively and professionally the execution staff performed.”

The suit was filed by the Los Angeles Times, public broadcaster KQED and the San Francisco Progressive Media Center, publisher of the online journal 48hills.org. Ajay Krishnan, a lawyer for the Progressive Media Center, said the state is not seeking to dismiss one important part of the lawsuit — a public view of the drug-preparation room once prison staff starts to inject the lethal drugs.

At that point, “they have to find out whether it’s working, whether the inmate is unconscious,” and witnesses should be able to observe them,” Krishnan said.

But in trying to shield drug preparation and medical intervention from public view, he said, the state is “unilaterally defining when an execution begins and ends,” a task that belongs to the courts. He also said it was “a little disingenuous,” and legally unsupportable, for the state to invoke the “privacy and dignity” rights of an inmate it is trying to kill.

California’s last execution was in January 2006. A federal judge ruled later that year that flaws in staff training and lethal injection procedures had created an undue risk of a botched and agonizing execution. The state has revised its rules several times but has not yet won court approval.

A voter-approved initiative in 2016, however, prohibited further state regulatory review of new single-drug execution procedures, and the U.S. Supreme Court has sharply restricted inmates’ ability to challenge potentially painful execution methods. At least 21 condemned prisoners in California have exhausted all appeals of their death sentences, and unless Gov. Jerry Brown or his successor intervenes by commuting the sentences, executions are likely to resume within a year.