The Cautionary Instruction: Does government transparency demand open execution?

The Pittsburgh Post-Gazette/Ipso Facto
August 12, 2011

A recent court order out of the state of Georgia may have reality television show producers licking their chops. The order is not the settlement of a copyright issue or the resolution of an invasion of privacy case.

A Fulton County Superior Court ordered the taping of Andrew Grant DeYoung’s execution by lethal injection -- the ultimate reality show. Judge Bensonetta Tipton Lane allowed the recording of the execution as part of an effort to secure evidence regarding a claim that lethal injection causes unnecessary suffering.

This is the first known taping of an execution by lethal injection, but the Georgia decision is not unprecedented. In 1992, the execution of a California inmate was recorded when the constitutionality of death in the gas chamber was challenged.

Modern efforts to make executions public through televised broadcasts have been rebuffed by the courts, including a 1977 lawsuit filed by a Dallas public television station seeking to record an execution by electrocution.

Professor Douglas Berman of Ohio State University commented on his blog, Sentencing and Law Policy, “I think it would be foolish for anybody who is authorizing or supervising the videotaping of executions to assume that it will always remain sealed and unseen.” He added, “Somewhere, somehow, at some point, this will become publicly accessible.”

The only news photograph of the exact moment of an execution was taken January 12, 1927 during the electrocution of a woman at Sing Sing Prison in New York. The last public execution in the United States took place in 1936, in Owensboro, Kentucky -- before a crowd of 20,000 people.

As Timothy McVeigh’s execution drew near in 2001 he wrote a letter to the Daily Oklahoman seeking to “hold a true public execution - allow a public broadcast.” McVeigh's attorney said, "He is in favor of public scrutiny of government action, including his execution.” On June 11, 2001, McVeigh died from lethal injection as he stared up at a closed-circuit camera attached to the ceiling of the execution chamber. The execution was broadcast, but only to a room full of victims and family in Oklahoma City.

State-sponsored executions are the last bastion of government secrecy in this age of transparency and open records. Sister Helen Prejean, a death penalty opponent, has suggested that public executions will lead to the demise of capital punishment.

Professor Zachery Shemtob and former federal prosecutor David Lat recently wrote in the New York Times, “We leave open the possibility that making executions public could strengthen support for them; undecided viewers might find them less disturbing than anticipated.”

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