On December 18, Indiana hopes to get back into the execution business. On that date, it plans to put Joseph Corcoran to death for the 1997 murder of four people, including his brother.
Corcoran is one of eight men on Indiana’s death row—also called “X Row.” The others include an inmate who “stabbed two co-workers after he was fired,” another who “shot and killed a police officer,” and two people who each “killed multiple children.”
Corcoran’s lawyers are seeking a stay of execution because he has long suffered from a serious mental illness. As they explain, he “cannot distinguish between reality and his delusions and hallucinations — his delusions are his reality.”
The last time the state carried out an execution was in 2009 when Matthew Wrinkles was executed for murdering his wife, her brother, and sister-in-law. Since then, Indiana has been unable to obtain the drugs needed for its lethal injection protocol.
In June, Republican Governor Kevin Holcomb announced that, after “years of effort,” the state had acquired the sedative pentobarbital that other death penalty states use in executions. The ABC affiliate in Indianapolis reported that the state’s Execution Procedure Manual requires the use of “four syringes of pentobarbital containing 1.25 grams each….” It notes that “[t]oxic doses of pentobarbital occur at approximately 1 gram in most adults, with death occurring at two to 10 grams.”
At the time Holcomb made his announcement, Attorney General Todd Rokita said he would ask the state supreme court to set an execution date for Corcoran. It did so on September 10.
If Corcoran is killed, it will be under some unusual and troubling circumstances. Under Indiana law, no journalists or representatives of the media will be present when the state carries out his execution.
Such a ban is an assault on the First Amendment and the values that it embodies.
As Cornell Law Professor John Blume argues, the death penalty “is the most extreme punishment that society takes in any criminal case. 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 calls the media “neutral members of the public” who can observe and report what happens during an execution. He argues that its presence is especially important “if an execution is botched” or if there is a dispute about what happened.
Robin Maher, Executive Director of the Death Penalty Information Center (DPIC), echoes Blume’s sentiments. “Because an execution is an official government function that uses taxpayer funds and resources,” Maher observes, “the process requires full transparency and accountability by government officials.”
Secrecy statutes, like Indiana’s, that “prevent media witnesses from attending executions are contrary to democratic principles that promote public trust, ensure integrity, and prevent governmental abuse and overreach.”
On November 22, the DPIC issued a report about media access to executions, which highlighted how anomalous Indiana’s ban on media or journalist witnesses really is. Wyoming is the only other state with a similar ban.
“Media policies,” the DPIC says, “vary widely in how many journalists are allowed to attend an execution. The number ranges from zero in Indiana and Wyoming to 12 in Florida.”
In addition, nine years ago, Kate Rapp, then a law student at Mississippi College of Law, put Indiana in a group of five states (others are Colorado, Georgia, Texas, and Wyoming) with what she called the “most privatized” executions. Each of those states either bans reporters or what are called “respectable witnesses.”
Rapp called four states (Florida, Mississippi, Pennsylvania, and South Dakota) the “least privatized” since they explicitly provide for both media and other public witnesses if/when they carry out an execution.
But, as the DPIC notes, “Some states, including Alabama, which leads the country in executions this year—allow media access only at the discretion of the Department of Corrections. States differ on whether the DOC selects individual journalists or whether designated media outlets are permitted to select the journalists who will attend.”
Many death penalty states “appear to rely on the discretion of corrections officials, allowing states to restrict media access without notice. Many states also impose additional restrictions on media access not listed in their formal policies, such as cutting audio during the execution or permitting visual access to the prisoner only after the IV has already been inserted.”
In addition, the DPIC says, “Only some states publicly clarify how journalists can document the execution; those states typically provide pencil and paper for journalists to take notes, but uniformly bar journalists from using recording devices, including cameras. “
And, looking at the situation over time, Rapp observes that the “number of state statutes privatizing executions has increased and likewise, the number of state statutes allowing for a broader audience has decreased as between 1983 and 2015.”
Given Indiana’s restrictions on media access to executions like Corcoran’s, one might ask who can attend.
Indiana law specifies:
— Only the following persons may be present at the execution: (1) The warden of the state prison. (2) The person designated by the warden of the state prison and any assistants who are necessary to assist in the execution. (3) The prison physician. (4) One (1) other physician. (5) The spiritual advisor of the convicted person. (6) The prison chaplain. (7) Not more than five (5) friends or relatives of the convicted person who are invited by the convicted person to attend….
— [Witnesses may include] not more than eight (8) of the following members of the victim’s immediate family who are at least eighteen (18) years of age: (A) The victim’s spouse. (B) One (1) or more of the victim’s children. (C) One (1) or more of the victim’s parents. (D) One (1) or more of the victim’s grandparents. (E) One (1) or more of the victim’s siblings.
And “If there is more than one (1) victim, not more than eight (8) persons who are members of the victims’ immediate families may be present at the execution. The department shall determine which persons may be present….”
So, if Indiana goes through with its plan to put Corcoran to death, there will be many eyes on him. But each of those present will bring their own biases and feelings to their act of witnessing.
As I told the Christian Science Monitor in 2017, “The role of the witness is a complicated and contradictory one.” An execution, I argued, “is dramatic and traumatic for the individual witness, but it’s really just a cog in the bureaucratic machinery. Yes, [bearing witness] has an important theological connotation, but they are also being invited to see something which is required to be seen. It’s not like the witnesses are in charge.”
It is no less complicated for journalists when they are present at an execution. But complicated or not, they are a necessary stand-in for all of us.
As the DPIC explains, “Unobstructed media access to executions is critical because the media observes what the public cannot. States generally prohibit citizens from attending executions, so the media becomes the public’s watchdog, providing important information about how the government is following the law and using taxpayer funds.”
When, as in Indiana, journalists are not present, executions are incompatible with the public’s right to know. Unlike the others present at an execution, journalists are there to provide us with a detailed account of the things the government does when it kills in our name.
Source:
verdict.justia.com, Austin SaratStaff, December 2, 2024? Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.
