New organizations allege Department of Corrections is violating First Amendment
By Denise Lavoie
AP Legal Affairs Writer
RICHMOND, Va. (AP) — The Virginia Department of Corrections has asked a federal judge to throw out a lawsuit that claims prison officials are unconstitutionally limiting public access to executions in Virginia.
The lawsuit filed last month by four news organizations alleges that the department is violating the First Amendment by using curtains to block witnesses from seeing certain steps during a lethal injection or electrocution — the two methods of execution allowed under Virginia law. It seeks a court order to ensure the public can view the entire execution process, from the moment an inmate enters the execution chamber through the moment of death.
In a motion to dismiss filed Wednesday, lawyers for the state argue that while the First Amendment guarantees a right of public access to criminal court proceedings, that right “does not extend beyond the prison door.” There is no First Amendment right to witness an execution, they said.
“If this were true, states could be compelled to broadcast executions for public viewing, a position that has been universally rejected by every court to have considered it,” Attorney General Mark Herring’s office argues in the motion.
The lawsuit alleges that because witnesses are not able to view the entire execution process, it curtails 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 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. They are represented by the Media Freedom & Information Access Clinic at Yale Law School and attorneys with a Richmond law firm.
Anna Kaul, one of six law students working on the case, said the lawsuit “asserts an important constitutional right to know how the Commonwealth exercises its most consequential power.”
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, including when an inmate enters the execution chamber.
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.
One inmate was executed in Virginia under the new protocol in July 2017. Virginia has executed 113 inmates since 1976, when the U.S. Supreme Court reinstated the death penalty.
In the motion to dismiss, the state argues that the lawsuit boils down to a complaint that the DOC is not fully complying with a state statute allowing a limited number of people — admitted at the discretion of the director of the department — to be present during an execution.
“Resolution of this issue presents a pure question of state law that does not arise under the Federal Constitution and is therefore not properly before this Court,” the state argues.
The state also argues that the lawsuit is barred by a two-year statute of limitations.
