Eric Risberg, Associated Press
BOISE, Idaho — A San Francisco-based federal appeals court ruled in 2002 that every aspect of an execution should be open to witnesses, from the moment the condemned enters the death chamber to his or her final heartbeat.
The ruling established what was expected of the nine Western states within the court's jurisdiction. A decade later, four of the states have kept part of each execution away from public view, according to an Associated Press review and death penalty experts.
Idaho, Arizona, Washington and Montana have conducted 14 lethal injections since the ruling, and half of each procedure has been behind closed doors. That means that a small group of witnesses, including members of news organizations who act as representatives of the public, do not see, for instance, the insertion of the IVs that deliver the fatal drug mixture.
The practice comes at a time when the method itself has drawn greater scrutiny, from whether the drugs are effective to whether the execution personnel are properly trained.
The states that limit access say they do so to protect the anonymity of the execution team, which may include emergency medical technicians, military medics or others trained to insert IVs. Open government and journalism groups argue that witnessing all aspects of an execution is the only way to determine if it is being properly carried out.
The AP and 16 other organizations on Tuesday sued the state of Idaho to force officials to open the entirety of their executions, arguing that the news media, and by extension the public, has a First Amendment right to view all steps of lethal injections.
"This lawsuit is really all about obtaining access to the entire execution process for viewing purposes," said Chuck Brown, the attorney representing the news organizations. "It's very important in a society such as ours to have full transparency in regards to the exercise of government authority."
Idaho Department of Correction spokesman Jeff Ray said late Tuesday the department had not yet had a chance to review the lawsuit, and that the state's attorneys would respond to the claims in court.
When made aware of the 2002 court ruling, state officials said previously that the decision did not apply to their procedures. "The circumstances of the case are unique to California," said Idaho deputy attorney general for prisons, Mark Kubinski.
Kubinski said the protocol balances the public's right to witness executions with the state's obligation to carry it out "in a safe and professional manner, while maintaining respect and dignity for all parties."
Several high-profile cases since 2006 have raised questions about the way states conduct lethal injections.
In two instances in Ohio, one of the few states that allow witnesses to see the entire process, corrections staff couldn't find a vein. In one of those cases, officials halted the execution and the inmate remains on death row. With news organizations present, the experiences of the inmate, Romell Broom, were widely reported.
In another case, in Florida in 2006, which does not allow viewing of the IV insertions, executioners pushed the needles through Angel Nieves Diaz's target veins and into the soft tissue beneath. He had to be given a second dose and took 34 minutes to die — more than twice the normal time.
Historically, the public was able to watch executions from start to finish, said Trina Seitz, a death penalty expert at Appalachian State University.
Over time, executions became more private as technology advanced. Electrocutions, for example, can't be done in a rainy prison yard for safety reasons, so they were moved inside, said Stuart Banner, a legal historian at UCLA's School of Law.
Still, journalists have always been reserved a spot among the witnesses, Seitz said, so they could report the death back to the public.
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