4 Western U.S. states shielding part of executions

By Rebecca Boone

Associated Press

Published: Wednesday, May 23 2012 12:00 a.m. MDT

In the 1990s, several news organizations attempted to get on the witness list for the lethal injection of William Bonin in California. Bonin was dubbed the "Freeway Killer" for the serial murders of 14 young men and boys.

Those who did witness the execution were unsure about what they saw.

Bonin was already strapped to a gurney with IV tubes attached when the death chamber's curtains were drawn open. He barely moved, and his eyes were closed. A few silent minutes passed, and then he was pronounced dead.

The California First Amendment Coalition sued, saying the limited access violated the public's First Amendment rights to view executions. California officials argued the restriction was necessary to preserve the execution team's anonymity.

In 2002, the 9th U.S. Circuit Court of Appeals rejected that argument, saying there were other ways to protect their identity. Execution team members could wear surgical masks, hats and gloves, the court noted.

"Independent public scrutiny — made possible by the public and media witnesses to an execution — plays a significant role in the proper functioning of capital punishment," the judges ruled.

The ruling applies to a region that stretches from Montana to Hawaii and Alaska. Alaska, Hawaii, Guam and the Northern Mariana Islands do not have the death penalty, and Oregon currently has a moratorium on executions. Only California has followed the ruling since it was made in 2002.

Nevada kept its executions partially closed until 2006, when the Reno Gazette-Journal sued in federal court to gain full access. State corrections officials acknowledged that the policy violated the 9th Circuit's ruling and agreed to allow reporters to view all steps of the execution of Daryl Linnie Mack on April 26, 2006.

But there appears to be some confusion about the state's current rules: Nevada Department of Correction spokesman Steve Suwe said the policy is currently under review by the state's attorney general, but what he believes to be the most current version does not allow for media witnesses to view the insertion of the IV.

Outside the region, 27 states use lethal injection. Ohio changed its rules in 2004 after the American Civil Liberties Union threatened to sue. For 25 years, Georgia has allowed a reporter to act as a "monitor" during the process, while other witnesses enter the viewing chamber later.

During Idaho's most recent execution, Paul Ezra Rhoades, who was convicted of killing three people in 1987, could not be seen as he was brought into the death chamber. When the curtains were drawn, IVs were already connected.

When asked by a reporter about what happened before the curtains were opened, the corrections director, Brent Reinke, said the procedure was somber and professional and described how the IVs and other equipment was inserted.

Rhoades' attorneys sued in federal court, arguing that Idaho's death penalty protocol created the opportunity for several excruciating errors. Of most concern was incorrect IV placement, which could leave him paralyzed but conscious.

The legal scholars contacted by the AP who reviewed the California court case said it would be difficult to find a ruling that applies more closely to Idaho's policies.

Jen Moreno, a staff attorney with the Death Penalty Clinic at the University of California's Berkeley Law, said the ruling sets precedent for all states within the 9th Circuit and that the non-complying states would likely be forced to change their policies if they were challenged in federal court.

Moreno said the process of setting the IVs is the most crucial part of lethal injection because, if it is done incorrectly, the rest of the execution can go awry.

"The fact that the states are hiding one of the most important parts of the execution, setting the IV, really means that what the public does see is not going to be very telling of whether it was a humane execution," she said.

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