For the second time in seven months, Idaho is preparing to kill a convicted criminal in the name of all Idahoans.
And for the second time in seven months, the first phase of this procedure could occur behind a shroud of secrecy — in direct conflict with a 9th U.S. Circuit Court of Appeals ruling that holds that witnesses should be allowed to view an execution, from start to finish.
That’s why Idaho media groups, including the Statesman, went to U.S. District Court to petition for access to the execution of Richard Leavitt, scheduled for Tuesday. This is why media groups will appear before the 9th Circuit Court today to appeal a district court ruling that sided with the state.
This isn’t one of those First Amendment fights that wins the news media much sympathy from readers and viewers. It plays directly into the critics’ worst stereotypes of a self-important and voyeuristic media. But this is, nonetheless, an important access issue.
Reporters are the public’s witnesses to an execution. The job is every bit that somber, every bit that essential. Reporters are there to confirm what corrections officials will invariably assert after the fact: that an execution was conducted in a humane and dignified manner.
Is there any public function where government should be held more accountable?
Idaho’s execution protocol compromises the media’s public function. If Tuesday’s execution adheres to state guidelines, Leavitt will be brought into the execution chamber, restrained and hooked up to the IV catheters that administer the lethal injection, all before witnesses are ushered into the chamber.
These are important steps in the procedure; the insertion of the catheter is at least as delicate and crucial a step as the actual lethal injection itself. But reporters — and, by extension, Idahoans — are expected to accept on faith that these steps have been carried out smoothly.
Consequently, in a 2002 California case directly on point, the 9th Circuit ruled as follows: “The public has a First Amendment right to view the condemned as he enters the execution chamber, is forcibly restrained and fitted with the apparatus of death.” Yet Idaho did not heed this ruling in the Nov. 18 execution of Paul Ezra Rhoades, and has no intention of heeding it in the Leavitt execution.
Even though he ruled against the media, I can’t be too critical of U.S. District Judge Edward Lodge’s decision Tuesday. Lodge said the media groups have a “strong claim” on First Amendment grounds. He also criticized media groups for filing their complaint on May 22, less than a month before the execution date, and questioned media groups’ assertion that the state could change its protocol without delaying the execution.
“The public has an interest in viewing the whole execution process, but it also has an interest in seeing the judgment enforced without disruption.”
But I’d also criticize the Correction Department for insisting on a procedure that runs counter to case law, prompting the media groups to file their complaint. I’d also point out that Leavitt faces execution in connection with a 1984 murder.
Idaho doesn’t exactly rush into executions, not that it should. It’s not too much to ask that the state find a way to abide by legal precedent.