In 2014, Chris McDaniel was investigating whether Missouri was injecting inmates with a particular sedative, midazolam, before executing them. While under oath, the state had previously said it would not use the drug in its executions.
McDaniel, a death-penalty reporter, needed to find out crucial details for his story, so he applied to be a witness of executions in the state. On his application, he wrote that he wanted to "ensure that this solemn task is carried out constitutionally." More than 4 years and 17 executions later, he has published multiple high-impact investigations uncovering Missouri's lethal-injection secrets. He has never been allowed to witness an execution, however, and has yet to hear back about his application.
In the same year in which McDaniel submitted his application, the American Civil Liberties Union (ACLU) sued the Missouri Department of Corrections to obtain copies of witness applications. After a judge ordered the department to release the documents in 2016, the ACLU found that the agency had not approved dozens of applications from people wanting to witness executions to make sure they were carried out constitutionally. McDaniel was one of them, and the ACLU, which had worked with him on a previous case, asked if he would join a federal lawsuit.
McDaniel - a BuzzFeed investigative reporter who formerly worked for St. Louis Public Radio - and the ACLU filed a lawsuit against the Missouri Department of Corrections in 2016 alleging that the state is barring him from being an execution witness because of his critical coverage of the state's lethal-injection protocol. This is a violation of his constitutional rights, his attorney argues, because the witness-selection policy allows for discrimination based on reporting protected by the First Amendment. The suit demanded that Missouri come up with a policy for how witnesses are selected. The Department of Corrections moved to dismiss the case, but on July 28 of this year, a federal appellate court ruled that McDaniel may proceed with the suit.
"I think it's a very important press-access issue," McDaniel tells CJR. "Prisons are notoriously difficult to report on because we don't get access.... the biggest power a government can have is taking the life of someone, and it's also the thing that's carried out with the most secrecy at the state level."
In active death-penalty states, secrecy around executions is the norm - and botched executions are far from rare. As pharmaceutical companies increasingly refuse to sell their drugs for the purposes of killing people, states have begun exploring new, sometimes dangerous avenues to procure drugs, some of which have never been used in executions before. These untested methods, and other issues, can result in botched executions that may violate the Eighth Amendment's prohibition of cruel and unusual punishment. By witnessing and reporting on executions, reporters act as an important link between the execution chamber and the public, relaying information that few have access to.
"The biggest power a government can have is taking the life of someone, and it's also the thing that's carried out with the most secrecy at the state level."
In 1982, there were no journalists present to witness Virginia's execution of Frank J. Coppola by electric chair. According to an attorney who was there, Coppola was jolted for nearly 2 minutes with electricity, which eventually set his head and leg on fire. And in March 2018, journalists looked on in horror as executioners tried for hours to locate a vein of Doyle Lee Hamm's to pump lethal injection drugs into, stabbing him a dozen times. By the time they gave up, Hamm was soaked with blood, and he urinated blood the next day, his attorney said. And even when journalists are present, that doesn't mean they are able to see the entire execution.. States have been known to close the curtains when something has gone wrong.
Hamm's case is just one of many that have shown the importance of journalists being present for executions. Their presence holds states accountable, an important task as death row inmates continue to fight their cases and cite botched executions as proof of cruel and unusual punishment to do so. After Hamm's execution attempt made headlines across the country, Alabama agreed that it would not try to kill him again.
But stories often do not go deep enough to provide the public with a clear picture of what's happening when someone is executed, McDaniel says, attributing the issue to several factors, including secrecy and the complexity of the death penalty. A June Washington Post article on the Texas execution of Danny Bible, who was likely to experience a botched execution due to several medical issues, his attorneys argued, reported that it had "occurred without complications" despite revealing that "after the drugs were administered, he muttered that it was 'burning' and that it 'hurt.'"
"I sort of view my reporting on this as a government-accountability reporting position and this is like the biggest responsibility that the government has," McDaniel says. "And it's kind of of a weird thing where this is the biggest power that the government has, but it's also a thing that they receive shockingly little press oversight for."
In Missouri, the power to select at least "8 reputable citizens" to be witnesses, a requirement for every execution, lies with just one person: the director of the Missouri Department of Corrections. At least 1 media witness is chosen from in-state, according to a corrections department spokeswoman. Missouri's legislature grants this discretion, but doesn't provide any criteria for how they will be chosen, according to Anthony Rothert, who is McDaniel's attorney and the legal director of the ACLU of Missouri. This is highly unusual, he says; every other death-penalty state has a procedure for choosing witnesses.
It's important for members of the press to be there to honestly and accurately tell the public what is going on at this very secret thing.
The director of Missouri's corrections department, George Lombardi, was choosing people who would be favorable to his agency, such as detectives, students, or former corrections department employees, to be witnesses, Rothert says. The media witnesses were from outlets who were generally on the state's good side, according to Rothert.
"People who do more in-depth reporting on the various aspects of the death penalty and how it's carried out and have made the Department of Corrections look bad are not selected," Rothert says.
Rothert argues that regardless of McDaniel's coverage, denying him the opportunity to witness executions because of his stories violates the due process clause of the Fourteenth Amendment.
"This case is about whether or not the policy, the complete discretion given to choose witnesses, is allowing the government to engage in viewpoint discrimination and punish those who might report critically on how the death penalty is carried out," Rothert says.
Prior to applying to become a press witness, McDaniel revealed in a 2013 investigation for St. Louis Public Radio that Missouri's execution-drug supplier was not licensed to sell in Missouri. As a result, the pharmacy supplying the drugs agreed to no longer sell them in the state, a huge blow to the corrections department, which then had to find a new supplier, no easy task. But the hurdles McDaniel created through his reporting should not be a reason for the corrections department to shut him, and the public, out, he argues. "I don't think their dislike of me making their job more difficult should impact my ability to report - the public's ability to know about what is taking place," he says.
As McDaniel continued to report on the use of a controversial sedative, midazolam, in executions without being able to actually witness the executions themselves, he relied on accounts from people who were there. By speaking to press witnesses, he was able to find out that inmates being executed were likely sedated, but these witnesses didn't have the detailed notes McDaniel needed to create a timeline of specifics such as when a person's eyes were open. He depended heavily on chemical logs of drugs in the state's possession he had obtained via public records requests to find out which drugs were being used.
After his story was published in September 2014, McDaniel wrote two more pieces critical of lethal injection in Missouri. A 2016 BuzzFeed investigation revealed that an Oklahoma pharmacy supplying lethal injection drugs to Missouri had committed nearly 1,900 pharmacy regulation violations. And in March 2018, another BuzzFeed investigation found the compounding pharmacy the Missouri had been using for its lethal injection drugs was deemed "high risk" by the Food and Drug Administration. In light of these facts, the US Court of Appeals for the Eighth Circuit ruled in his favor in July, finding it probable enough that McDaniel had been harmed by the lack of protocol for selecting witnesses that the case could move forward.
"McDaniel's allegations that the Director's policies provide an opportunity to exclude McDaniel based on his viewpoint and that the Director has excluded McDaniel and all applicants sharing his particular viewpoint are sufficient to give him standing to press the claim," the court wrote.
Now that the appeals court has ruled, the case will likely return to the trial court, Rothert says. He expects it to be decided in about a year.
Ideally, the corrections department wouldn't be able to decide who gets to be a witness, and reporters would choose among themselves, McDaniel says, noting that the reporting on an execution can have an impact that extends far beyond the time in the witness gallery.
"It's important for members of the press to be there to honestly and accurately tell the public what is going on at this very secret thing," he says. "It's important for that specific execution, and it's important for things that could be difficult to understand at the time but could be relevant in a longer investigation."
A spokeswoman for the Missouri Department of Corrections declined to comment, citing the litigation.
Source: Columbia Journalism Review, Lauren Gill, August 21, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde