News organizations allege violation of First Amendment
By Denise Lavoie
AP Legal Affairs Writer
RICHMOND, Va. (AP) — Prison officials are unconstitutionally limiting public access to executions in Virginia by blocking witnesses from seeing certain steps in the process, four news organizations allege in a federal lawsuit filed Monday.
The lawsuit filed in U.S. District Court in Richmond alleges that the department is violating the First Amendment by using curtains that block witnesses from seeing “crucial steps” in carrying out a lethal injection or electrocution — the two execution methods allowed under state law.
“These limits on witnesses’s ability to view Virginia’s executions severely curtail the public’s ability to understand how those executions are administered, or to assess whether a particular execution violates either the Constitution or the state’s prescribed execution procedures, or is otherwise botched,” the news organizations state in the lawsuit.
The Department of Corrections did not immediately respond to requests for comment on the lawsuit. A phone message was left and an email was sent to DOC spokespersons.
The state’s current execution manual, last updated in 2017, allows citizens and members of the media to view executions from a witness room separated from the execution chamber by a window. Two curtains obstruct witnesses from seeing certain steps in the execution process.
One curtain covers the observation window before an inmate enters the execution chamber.
For lethal injections, the manual requires that the front curtain remain closed until after prison officials have strapped down the inmate and inserted the intravenous lines that will deliver the drugs. A second curtain shields the executioner and the administration of drugs from view throughout the execution process.
For electrocutions, the manual requires that the front curtain remain closed until prison officials have strapped the inmate to the electric chair and performed three actions. Those actions are not known because they have been redacted from the publicly available version of the manual.
The lawsuit says that the curtains prevent the public from inspecting the initial condition of inmates as they walk into the execution chamber.
During lethal injection executions, witnesses cannot monitor how IV lines are placed and whether the inmate experiences pain during the process. They also are unable to see how and when the different drugs used to sedate and kill the inmate are injected into the IV lines.
For executions, the front curtain prevents witnesses from monitoring whether the procedures are followed and evaluating the effects of those procedures on the inmate.
The lawsuit asks for a court order to ensure the public can view the entire process, from the moment an inmate enters the execution chamber through the moment of death.
The news organizations suing are: The Associated Press; Guardian News & Media LLC; BH Media Group, owner of the Richmond Times-Dispatch; and Gannett Co., Inc., owner of The News Leader of Staunton, Virginia. Harold Clarke is named as a defendant in his capacity as director of the Department of Corrections.
Execution witnesses used to be able to watch inmates walk into the chamber and be strapped down. The curtain was then closed so the public could not see the placement of the IV and heart monitors. After the curtain was reopened, inmates were asked whether they had any words before the drugs began flowing into their bodies.
In 2017, prison officials revised their procedures to keep more of the process out of public view after attorneys raised concerns about how long it took to place IV lines during the execution that January of convicted killer Ricky Gray.
News outlets reported that it appeared to take more than 30 minutes to place the IV lines and complete other procedures behind a curtain blocking the view of witnesses.
Gray was convicted of killing a Richmond family of four, slashing their throats and setting their home on fire after they left their front door open while getting ready for a New Year’s Day party in 2006.
The decision to make more of the process secret was sharply criticized by attorneys and transparency advocates. At the time, a spokeswoman for the Department of Corrections said the decision to delay the opening of the curtain until after IV lines are placed would reduce stress on the staff placing the lines and could make the process go more quickly for inmates.
One inmate has been executed in Virginia under the new protocol, William Morva, in July 2017. Morva killed a hospital security guard and a sheriff’s deputy after escaping from custody in 2006.
During Morva’s execution, witnesses were not able to see him enter the death chamber so it was unclear when the process began.
Virginia has executed 113 inmates since 1976, when the U.S. Supreme Court reinstated the death penalty. The state now has just two inmates remaining on death row. No execution dates have been scheduled.
