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Clayton Lockett Charles Warner
Clayton Lockett was put to death in Oklahoma in April after a botched execution. Charles Warner, right, was granted a six-month stay. Photograph: AP
Clayton Lockett was put to death in Oklahoma in April after a botched execution. Charles Warner, right, was granted a six-month stay. Photograph: AP

Death penalty secrecy imperils integrity of the procedure, US judge is warned

This article is more than 9 years old

Federal judge considers challenge brought by newspapers including the Guardian who say Oklahoma acted unconstitutionally by limiting reporters’ access

Allowing the state to filter what the press can see during an execution is akin to a “puppet theater” and would imperil the integrity of the procedure, a federal judge was warned on Thursday as he considered a challenge to the secrecy imposed by the state of Oklahoma during the botched execution of Clayton Lockett in April.

US district judge Joe Heaton listened to arguments from the American Civil Liberties Union,which claims Oklahoma prison officials acted unconstitutionally by lowering the blinds between the death chamber and the observation room after it was clear the procedure had gone awry, and from the state, asking that the lawsuit be dismissed.

The ACLU is joined as a plaintiff in the case filed in the US district court for the western district of Oklahoma by the Guardian, the Oklahoma Observer and journalist Katie Fretland, who was one of the journalists in the observation room for Lockett’s execution and who reported for both outlets.

“The supreme court has said repeatedly that justice cannot be done in the dark. That is nowhere more true than when we’re talking about killing a human being,” ACLU staff attorney Lee Rowland, who presented the plaintiffs’ case, said before the hearing. “It is imperative that the press, and by extension the public, are able to have independent eyes and ears at that procedure and be certain that the state is carrying out lethal injections in a proper manner.”

Rowland asked the judge to consider pre-empting Oklahoma from denying reporters access to the full lethal injection process, arguing that the “press serves as a vital proxy for the public’s oversight of the death penalty”.

In the wake of the botched execution, Oklahoma adopted new execution protocols that, among other changes, reduces the number of media witnesses from 12 to five. The new procedures also allow state officials to remove witnesses from the viewing area and lower the blinds during an execution if the inmate is still conscious after five minutes. The lawsuit asks the court to stop Oklahoma from imposing these new procedures.

The state asked the judge to throw out the lawsuit on the grounds that it has the right to limit access of the press during an execution. Representing Oklahoma, assistant attorney general Dan Weitman argued that while it might be “good” to allow the press to witness such procedures, the first amendment does not grant reporters unfettered access. Weitman also told the judge that a bungled execution was unprecedented for the state, and that something like Lockett’s prolonged death was unlikely to occur again.

On 29 April, Lockett, 38, condemned to death for kidnapping, rape and murder, was ushered into an Oklahoma death chamber, strapped to a gurney and injected with a cocktail of three drugs – midazolam, vecuronium bromide and potassium chloride. It was soon clear something had gone terribly wrong. He was observed writhing and groaning on the gurney before prison officials lowered the blinds midway through the execution.

Shielded from the view of reporters, Lockett died 43 minutes after the procedure began. A second execution scheduled to take place that night was postponed.

“The public was deprived of an independent witness in Lockett’s death, which, given what happened, is bad for democracy,” Fretland told the Guardian after the hearing. “The death penalty is the most severe action the state can take, and it’s taking this action in the name of the public, and what’s lost, I think, behind the veil of secrecy is the public’s right to independently evaluate the proceeding.”

Lockett’s execution was one of a series of botched procedures that have renewed a nationwide debate about capital punishment in America. A Europe-led boycott of medical drugs that US corrections departments use to kill their prisoners has squeezed states’ lethal drug supplies. The scarcity has forced states to find other, potentially less reliable, supply lines.

This risk, Rowland argued, sharpens the need to guarantee reporters and other witnesses are permitted “meaningful, uninterrupted and unedited” access to the lethal injection procedure from the moment the condemned inmate is wheeled into the chamber until the moment of death.

This would include allowing reporters to view the insertion of the IV, which witnesses to Oklahoma executions have traditionally been blocked from viewing. During Lockett’s execution, the blinds remained closed while officials inserted the intravenous lines. They were raised only when officials began administering the lethal cocktail.

On this point, Weitman argued that allowing witnesses to observe the IV insertion would put the members of the execution team at risk of being identified. Rowland countered that other death penalty states, including Arizona and Ohio, allow witnesses to view this aspect of the execution, and said the state could take simple steps to conceal the team’s identities.

Oklahoma’s next scheduled execution, of inmate Charles Warner, whose execution was originally to take place hours after Lockett’s, is set to happen on 15 January. Heaton said he would attempt to deliver his decision promptly, with Warner’s new execution date in mind.

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