Hoosier prison staffers, the condemned’s friends and family members, and the victims’ family members may soon witness the state of Indiana’s first execution since 2009. But it’s likely that no independent witnesses will be included.
Joseph Corcoran, who killed four people in 1997, is scheduled to be executed Dec. 18. In Indiana, the death penalty is only available for the crime of murder. It will also be the state’s first time killing a prisoner with pentobarbital instead of a traditional three-drug cocktail.
But public information on how it goes will come exclusively from the Department of Correction. That’s because Indiana law, in contrast to other states, doesn’t allow for media or other independent witnesses.
There were 13 federal executions during the last six months of Donald Trump’s first presidential term and reporters were allowed to witness them.
Tim Evans, of the Indianapolis Star, witnessed one of those executions in July of 2020. Here is what he wrote in a column.
“(Daniel Lewis) Lee looked up briefly at us. Two small hoses running from a stainless steel port in the green tile wall behind the gurney were attached to IVs. One in his left elbow, the other on his right hand. In a matter of minutes they would administer the lethal injection … Lee lay quietly as the drug flowed into his veins. His chest rose and dropped slowly. At a couple of points over the next two to three minutes Lee fluttered his lips, like he was blowing bubbles. But nothing came out. His head bobbed up and to the right, then dropped back down. He appeared to run his tongue over his lips, and one hand twitched.”
Execution “is the most extreme punishment that society takes in any criminal case,” said John Blume, a professor at Cornell Law School professor and director of Cornell’s Death Penalty Project.
“And if you want the public to have confidence in the administration of justice, it seems to me like you would want transparency to be at its highest when (government) is taking its most draconian action,” Blume added.
Indiana Department of Correction spokeswoman Brandi Pahl wrote that “public information regarding who can be present” is available in statute.
Indiana Code says only certain people may witness an execution: the state’s prison warden and designees, the prison physician and another doctor, the prison chaplain, the condemned’s spiritual adviser, a maximum of five friends or family members of the condemned, and a maximum of eight family members — at least 18 years old — of the victim or victims.
The law limits the latter witnesses to direct family members: children, parents, grandparents or siblings. It allows, upon request, a “support” room for additional victim family members.
The statute dates back to 1983 but was amended in 2002 to keep executioners’ identities confidential and let wardens keep out dangerous witnesses, and in 2006 to reduce the number of the condemned prisoners’ loved ones and to add victim family.
A 2015 analysis of states with the death penalty, published in the Mississippi College Law Review, found that Indiana was one of just five states that explicitly doesn’t allow reporters or “respectable” citizens as witnesses. That’s along with Colorado, Georgia, Texas and Wyoming.
Most states in the analysis — 20 — allowed for either a reporter or another independent witness, or didn’t rule them out. Four states expressly included reporters and other members of the public.
Blume, who spent years as a full-time capital defense practitioner, said the condemned’s loved ones may provide support during the execution or take action if something goes wrong. Victim family members, meanwhile, may get “closure or satisfaction.”
Media, he, said would serve as “neutral members of the public there to observe what happened and to report on it,” like if an execution is botched, or to settle disputes over what happened.
An estimated 3% of U.S. executions between 1890 and 2010 went wrong in some way, according to the 2014 book “Gruesome Spectacles: Botched Executions and America’s Death Penalty,” by Amherst College professor Austin Sarat.
In some cases recorded by the Death Penalty Information Center, the injection — billed as a more humane method of execution than gas, firing squad, or others — caused pain. And reports gathered by the center reveal differences in independent versus government accounts of the executions.
In 2014, Arizona murderer Joseph Wood was given a lethal injection, but took nearly two hours to die, gasping for breath during that time. A reporter who witnessed the execution counted 640 gasps but an Attorney General’s Office spokesperson said Wood was just asleep and snoring, according to the Arizona Republic.
“Because an execution is an official government function that uses taxpayer funds and resources, the process requires full transparency and accountability by government officials,” said Robin Maher, the executive director of the center.
“Secrecy statutes that prevent media witnesses from attending executions are contrary to democratic principles that promote public trust, ensure integrity, and prevent governmental abuse and overreach,” she continued, in a written statement. “Secrecy also greatly increases the chances that an execution will be botched because there is no opportunity for outside experts to fully examine and critique the process.”
Even states that let reporters observe may not allow witnesses to see preparatory procedures — like pokes for intravenous lines — or to hear audio from the execution chamber.
Blume said states often have a curtain or glass separating witnesses from the execution chamber, and that the curtain isn’t pulled until the execution is ready: condemned prison strapped down with a sheet draped across the body and I.V. lines placed.
He posited that governments may want to block viewing of what can be a “lengthy, painful” cutdown to make it “appear like the person peacefully drifts off to sleep. But it may also protect the condemned’s privacy, “to not have to endure this with a bunch of people that want to see him die watching.”
Blume believed someone besides prison staff should view the insertion, however, like the client’s defense lawyer. He observed that it’s often defenders who step in when the execution goes bad.
Many of the botched executions documented by the center involve difficulty finding veins suitable for the intraveneous lines. Condemned prisoners were stabbed more than a dozen times in some cases, and the execution was sometimes called off.
An executioner spent about an hour finding a usable vein for Oklahoma murderer Clayton Lockett in 2014. The Guardian reported in 2014 that, for the first three minutes after the drugs were delivered, he “struggled violently, groaned and writhed” — observations not mentioned in the state’s timeline. About 13 minutes later, before he was dead, the state closed the blinds from the viewing room into the execution chamber. Lockett died of a heart attack 30 minutes later.
It’s unclear what Hoosier witnesses will experience. Pahl, the Department of Correction spokeswoman, didn’t reply to questions about the agency’s administrative rules about execution proceedings.
Reporters will be standing outdoors.
“A media staging area will be available outside of the Indiana State Prison and additional information will be provided closer to the date of the execution,” Pahl wrote.
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