Federal judge says Idaho must let execution witnesses watch as lethal drugs are prepped and pushed

BOISE, Idaho (AP) — Idaho prison officials must allow media witnesses at executions to watch as lethal injection drugs are prepared and administered to a condemned person, a federal judge ruled Tuesday.

U.S. District Judge Debora K. Grasham ordered the Idaho Department of Correction to provide the audio and visual access for any executions that occur while a First Amendment lawsuit from a coalition of news organizations moves forward in court. The state doesn’t have any executions scheduled, Grasham noted, so prison officials have time to install a closed-circuit audio and visual feed before they are again tasked with putting someone to death.

The Associated Press, The Idaho Statesman and East Idaho News sued the state’s prison director in December, arguing that key steps of the lethal injection process were being unconstitutionally hidden from public view.

“While it is true that this case concerns Idaho’s lethal injection execution procedures, it equally concerns the public’s First Amendment right of access to the State’s administration of the most severe penalty enforced by our State,” Grasham wrote.

Executions — including the means and methods used to carry them out — have historically been open to the public in the United States, Grasham wrote. Today, media witnesses act as surrogates for the public at large by viewing and then reporting on the execution process.

Grasham made clear that her ruling did not make a policy judgment about the death penalty itself, but instead “attempts to safeguard the constitutional right belonging to the public under the First Amendment of access to executions conducted by the state, so that such policy decisions can be well-informed.”

Idaho’s execution protocols currently allow media witnesses to watch as a condemned person is brought into the execution chamber, placed on a gurney, and has the IV inserted and attached to medical tubing that leads into another room. Witnesses can also watch as the condemned person dies. But the actual preparation and administration of the deadly chemicals is done in a separate part of the facility, and that process has always been hidden from view.

During a hearing earlier this month, Tanner Smith, the attorney representing prison officials, said the public can rely on prison officials to accurately tell them whether the preparation and administration of the drugs was successful. He also said that keeping the “medication room” hidden from public view helps protect the identities of the volunteers who carry out that work.

But Grasham said the state failed to show why those volunteers couldn’t just protect their identities by using the same face coverings, gloves and hats that are used by the execution team members who already work in view of media witnesses. Prison officials failed to show the secrecy was necessary for legitimate penological interests, rather than “exaggerated response,” she wrote.

“This Court finds it difficult to identify any aspect of an execution by lethal injection that is more ‘inextricably intertwined’ with the execution than the actual preparation and administration of the lethal injection drugs into the IV lines connected to the condemned individual,” Grasham wrote.

Twenty-seven states authorize the death penalty, according to the Death Penalty Information Center, though some have paused executions or do not have anyone on death row. The states also vary widely on how many media witnesses they allow at executions, as well as how much of the process witnesses are allowed to see.

This is not the first time The Associated Press and other news organizations have sued Idaho officials in an attempt to increase execution access. In 2012, the 9th U.S. Circuit Court of Appeals ordered prison officials to allow the news organizations to view the first part of lethal injection executions, including when a condemned person is brought into the execution chamber, secured to the execution gurney and the IV is inserted.

Idaho has attempted four lethal injection executions since the 1970s. Three of them were completed, but the most recent attempt, involving Thomas Eugene Creech, was aborted last year after execution team members were unable to successfully establish an IV line after eight attempts in Creech’s arms and legs.

Lawmakers passed a new law this year that will make firing squads the state’s primary method of execution, starting next year.