Editorial preview: A significant, sobering public access ruling

Given the timeliness of the topic — the execution of Idaho inmate Richard Leavitt, scheduled for 10 a.m. Tuesday — here is a draft of our Tuesday editorial on witness access to the execution.

For the First Amendment, and for those who believe in transparent government, it was a significant victory on a sobering front.

Witnesses should have access to view an execution from start to finish, the 9th U.S. Circuit Court of Appeals ruled late Friday. So at 10 a.m. today — when Richard Leavitt is scheduled to be killed in connection with the gruesome 1984 slaying of Danette Elg of Blackfoot — witnesses and reporters will be allowed to watch as corrections officials strap Leavitt to a gurney, and inset the IV catheter that will be used to kill Leavitt by lethal injection.

However unsavory, this is a key step in an execution — a sentence carried out by the state, on behalf of its people. If a select group of witnesses is unable to watch this stage of the process, all Idahoans are forced to accept, on faith, the government’s assertion that an execution went smoothly, and was handled in a dignified manner. This is why the Statesman joined 16 other news organizations in a lawsuit seeking full witness access.

The fact that the circuit court ruled in favor of access should come as no surprise. As a three-judge panel bluntly stated in Friday’s unanimous ruling, the court made this very determination in a 2002 California case. “The state of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law,” wrote the judges, criticizing state prisons officials for their “intransigence.”

State prisons officials have insisted that they cannot allow access to the first stages of an execution without jeopardizing the anonymity of the execution team. The state suggested that changes in the procedure could delay the Leavitt execution — an argument that held favor with U.S. District Court Judge Edward Lodge, who sided with the state in a June 5 ruling.

With Lodge’s ruling overturned, and the state’s arguments rejected on appeal, corrections officials now say they will comply with the circuit court ruling — a decade after the fact. Officials say the Leavitt execution remains on schedule. Which raises an obvious question: Why, then, didn’t the state follow the circuit court’s ruling in the first place?

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So KR, I guess that means you will be the self appointed......

representative for all Idahoans?

Actually, tetpilot:

I am not one of the media witnesses, nor did I apply for one of the pool positions. I'm an opinion writer, and I think those spots should go to news reporters.

Kevin Richert
editorial page editor

But KR, this isn't about news.......

It's all about opinion and analysis. We need to know, in your opinion, was the IV put in place professionally; did, in your opinion, the prison staff handle this process smoothly; was the process, in your opinon, conducted in a humane and dignified manner? Who better to represent the people than a professional with decades of experience formulating an opinion and analyzing the real meaning of such life changing events? This is far too important for some cub reporter to be there just describing what he saw - this is life and death. You need to get in there and represent us the way we deserve.

Take a deep breath....

Now. Isn't that better?


I agree with Tet above.

Witnessing the preliminaries of the event is NOT news.

The media progresses on this issue solely with the purpose of trying to make a case of "cruel and unusual punishment".

There is no other reason to extend the witnessing process.
Would you also like to have access to WITNESS his last dump? Maybe start with him in morning? You can be "embedded" with the condemned! Where does it stop? But really, who cares? Wanna watch them stick a needle in the guy. Whoppee.

This is ALL about liberal media's opinion of the death sentence. I recall, you, KR have admitted your opposition to the death sentence. Fine... but call it what it is.

The news was "he is sentenced to death" and "it happened". It starts and stops there. Everything else is sensationalism to sell more paper and advertising.

What does the Supreme Court say?

The Supreme Court has never ruled directly on this question regarding executions, but in as much as the 9th Circuit has had more of its decisions overturned than any other appellate court in the nation, perhaps Idaho should file an appeal.

Why should the western states be subjected to a ruling that doesn't apply to all states or to the Federal Bureau of Prisons?

If wonder if they realize that “intransigence"

and extreme examples of it are requirements to be in any form of Idaho government?

File this



It gives reporter-vultures the opportunity to write their self-congratulatory "oh the humanity of it all" piece. Round 2, of course, will be outing, badgering, and harassing identified members of the execution team - not for the sake of reporting news, of course, but a deliberate attempt to influence the process.

Fortunately, the 9th Circuit didn't reward the media with a delay in the execution, given the bald attempt by the media to make itself the news, rather than report on the news.

1st Amendment

For your review KR:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;..."

Let's see it starts with "Congress". It says nothing about States.

Even when applied to States, it says effecting not abriding the "freedom of the press". Do you that means the press can do whatever the heck they want to?

So where to do you think this is a 1st Amendment issue?


I don't think there's any question this is a First Amendment issue. The Circuit Court has dealt with this matter, twice, on First Amendment grounds. U.S. District Judge Edward Lodge, while siding with the state last week, at least allowed that there was some merit to a lawsuit on First Amendment grounds.

Kevin Richert
editorial page editor

legal status

Do you really think a District Judge decides if something is unconstitional?

In other "media-access"

In other "media-access" cases related to government generally and to prisons specifically, the courts have mainly focused on the 1st Amendment, while the 14th Amendment has also gotten attention in some cases such as those brought by reporters in the television industry seeking the right to at least film executions if not provide live broadcasts. You may recall that some in the media (i.e. Entertainment, Inc.) wanted to broadcast the execution of Timothy McVeigh. The Courts said no.

The two most frequently cited Supreme Court rulings on the media-access question as regards prisons are Pell v. Procunier and Saxbe v. Washington Post. Both cases were decided in 1974, but neither had anything to do with executions. Instead, they were about whether the media had a right to conduct face-to-face interviews with specific inmates. The high court said no. "The Constitution does not...require government to accord the press special access to information not shared by members of the public generally." In these and other cases, the courts have held that while information gathering is crucial to a free press, this doesn't give them the right to go wherever they please, whenever they please to gather such information.

In attempting to relate these older rulings to executions, I think the issue comes down to whether we the people, which includes the press, want to return to public executions. Private executions inside prison fences/walls have been the norm in most of the states since the 1830s. Television certainly makes it feasible to grant the general public access to executions without creating the crowd spectacle of earlier times - the blood thirsty crowd could gather anonymously on K.R.'s live blog. Some opponents of the death penalty believe this would turn the public against capital punishment. I doubt that myself, but it might turn them against live blogging. :)

Live blog

Is my memory correct KR did a live blog on the Rhoades execution?

Mostly good stuff BTW. See the First Amendment III and the 2002 Circuit case (link above) for the specific "additional access" information- if not already.

All ConLaw issues are up for review and changes. Guns, RoevWade, etc.

The Court said Congress can't resrict guns, but States can do almost whatever they decide by due process. Apply the same principle here. They could apply the same principle here. 1st Amendment addresses Congress.

This issue has not gone to the USSC- right?
Why would anyone push for that, so it's a moot issue.
Wanna see it- no big deal (as pointed out in teh Calif case).

Let's see what the other 9th Circuit states do now. ha!


Memory doesn't serve you this time. No live blog.

Kevin Richert
editorial page editor

Self Serving

In an interview the former Chief of ABCNews said the great thing about it was he felt he could make a difference.

Maybe ALL the media feels they are SO SPECIAL that they deserve to be the ones to make a difference...

It must be an ego trip.
"We are so special, WE have to be there to witness it because we are the ONLY ones qualified to tell the rest of the world."


Where was the media lawsuit prior to the Erza Rhoades execution last fall?

When will the media report to the people they represented?

We all know (because the Statesman said so) that we had to know how the process went. We needed to observe the IVs being put into place; we needed to know if the staff was abusive and disrespectful; we had to see if things went smoothly and in a dignified manner - well, how did it go? I know more about some shoplifters from Portland than I know about the execution. You appointed yourself as my representative at the execution - when are you going to describe what you saw?

Here's a link ...

... which was already on our site.


Kevin Richert
editorial page editor

The media completely failed the public........

All along we were told the media had to be there from the outset to report to the people. Three important terms were identified by you, KR - smoothly, humanely and dignity. None of these were referenced by the article you referenced above. The self appointed people's representative failed to report on the IV insertion: was it done professionally; was the prisoner subjected to any pain? How many attempts were made in each arm? We don't know. You failed to observe if the prison staff said anything to the prisoner or did anything to the prisoner that could be interpreted as inhumane. We don't know. You failed to summarize the entire process and conclude if the process was conducted in a dignified manner or not. We don't know. Everything that was reported in the article you referred me to could have been provided by the prison staff. Unless I missed something, I don't think the Statesman even had a witness there! It's the IDAHO Statesman, not the Boise Statesman or the Blackfoot Statesman - its Idaho's flagship newspaper. And you had no one there? Please tell me I'm wrong on this. The media provided me with no information that couldn't have been/wouldn't have been provided by the State of Idaho - and that, KR, represents complete failure on your part.


Here's how it works.

Only four reporters are allowed to witness the execution; it's not open to all writers. Furthermore, each news outlet can submit only one staffer's name to serve as a pool reporter; a Statesman reporter put his name in as a prospective witness.

Now, here's how the Correction Department allocates the spots:

The Associated Press, as a statewide news organization, gets one spot.

The Eastern Idaho media was assured one spot Tuesday, since Leavitt was from Eastern Idaho.

Broadcast media gets one spot.

The rest of the newspapers get to put in for one spot.

The four witnesses are chosen by lottery by the Correction Department.

The fourth spot, the one the Statesman put in for, went to a reporter from the Idaho Press-Tribune.

Don't take any of this to mean I'm complaining about the process or criticizing the lottery system. I'm just walking you through this, since you insinuate that the Statesman didn't have a reporter there due to lack of effort or lack of interest.

Kevin Richert
editorial page editor

Good info. Thanks, K.R. I

Good info. Thanks, K.R.

I knew it wasn't possible for the prison to physically accomodate all the media, but I wasn't sure what the pecking order was for deciding who would be allowed in. Sounds like a rational and fair policy to me.