YAKIMA — A federal appeals court ruling requiring that executions be fully open to public witnesses — including the insertion of IVs for lethal injection — could still have ramifications in two Western states that have kept part of their inmate executions from public view.
Washington state officials are still reviewing the ruling and say they have no immediate plans to change their execution procedures because they have no executions scheduled. Officials in Montana, meanwhile, say they haven’t reviewed the ruling because they also have no executions scheduled.
Arizona and Idaho, where the legal case originated, changed their procedures in two recent executions as a result of the ruling. But whether a legal fight over the issue now looms in Washington and Montana remains to be seen.
“This is certainly something we’re evaluating right now,” said Sherilyn Peterson, a defense attorney who has previously challenged Washington’s death penalty protocol on behalf of condemned inmates.
“It’s a good time because there isn’t an execution scheduled, so if there is going to be a case, better to do it now than wait until the last minute,” she said.
Today, nearly all of the 34 states that use lethal injection restrict access to half of every execution, shielding from view the moment the condemned enters the death chamber and when the IV lines are inserted.
The San Francisco-based 9th Circuit Court of Appeals ruled in 2002 that every aspect of an execution should be open to witnesses. The ruling applied to the nine Western states in the court’s jurisdiction, but four states still kept part of subsequent executions away from public view: Arizona, Idaho, Washington and Montana.
The states have said the move is necessary to protect the anonymity of the execution team. Open government and journalism groups counter that witnessing all aspects of an execution is the only way to determine if it is being properly carried out.
The closure also enables prison officials to shield from view issues that could arise during an execution, such as the inmate resisting being taken into the chamber and problems inserting the IV.
In June, the appeals court upheld another case filed in Idaho by news organizations to gain additional access.
“This has been an issue forever — ever since they stopped having executions in the public square,” said Tim Ford, an attorney representing Washington death row inmate Jonathan Lee Gentry, who was sentenced to death in 1991 for killing a 12-year-old girl in Kitsap County.
In 1975, Ford successfully fought to overturn a provision in Washington’s obscenity law barring witnesses from publicly describing an execution.
“It’s a perennial issue that has come up a lot of places, a lot of times,” he said. “It’s been a constant attempt to keep as much secrecy around executions as possible.”
Two inmates await execution in Montana’s death chamber, a single-wide trailer outside the prison in Deer Lodge. Witnesses sit mere feet away, with no window to separate them from the condemned.
Montana has carried out three executions since reinstatement of the death penalty in the 1970s, with the most recent in 2006.
Members of the state’s execution team have never raised fears about remaining anonymous because it’s never been an issue, said Montana Department of Corrections spokesman Bob Anez. Witnesses are not brought in until the condemned inmate is strapped down and the IV line inserted.
Seven men await execution at the Washington State Penitentiary in Walla Walla, where the execution chamber sits at the end of Unit 6, an old, brick living unit built in 1932.
In 1994, condemned inmate Charles Campbell resisted being taken to the death chamber, and prison workers were forced to strap him to a back board for his hanging.
Washington still offers inmates the option of dying by injection or hanging.
Members of Washington’s execution team also have raised concerns about remaining anonymous. The four-member team resigned in 2009, worried their identities could be exposed during litigation over the constitutionality of the state’s method of injection.
Washington switched from a three-drug protocol to a single-drug method in 2010. A substitute team was hastily assembled later that year for the execution of Cal Coburn Brown, an Oregon convict who raped, tortured and murdered a woman in 1991.
“These are all things that would have to be taken into consideration,” Washington Department of Corrections spokesman Maria Peterson said. “We’re in a unique position in Washington, because we don’t have many people on death row, and we don’t have any executions scheduled, allowing us time to consider everything.”
Sherilyn Peterson, the attorney, said legal arguments against Washington’s death penalty have largely focused on cruel and unusual treatment of the condemned, rather than on witness access.
“But I could certainly see that Washington is vulnerable to the same flaws,” she said. “It is imperative for the integrity of the process that the public have full access.”
Earlier in June, members of Idaho’s execution team wore surgical scrubs, masks and goggles to shield themselves from witnesses during the execution of Richard Leavitt, who was brought into the chamber on a gurney. And on Wednesday, Arizona executed its fourth inmate this year and first execution where witnesses watched the insertion of the IV.
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