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Ninth Circuit: Idaho Ordered to Allow Viewing of all Stages of Execution

by David M. Reutter

In reversing and remanding an Idaho federal district court's denial of a preliminary injunction, the Ninth Circuit Court of Appeals directed the lower court to enter an order requiring the State of Idaho to allow witnesses to observe a prisoner's execution "from the moment [he] enters the execution chamber through, to and including, the time [he] is declared dead."

The June 8, 2012 ruling came in the appeal of a 42 U.S.C. § 1983 suit filed by the Associated Press and a coalition of other media organizations after Idaho issued a warrant for the execution of death row prisoner Richard A. Leavitt. Prior to filing suit the plaintiffs had asked Idaho officials to alter the state's execution procedure, without success.

The procedure only allowed witnesses to view the final portion of an execution, "beginning with the reading of the death warrant and concluding with the pronouncement of death." It did not let witnesses see the first part of the execution process, including the insertion of intravenous lines for the lethal injection drugs.

The plaintiffs asserted that as media organizations they were surrogates for the public and had a First Amendment right to witness all stages of executions conducted by the state. Citing California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) [PLN, October 2003, p. 30], which addressed the same issue, the Ninth Circuit found the district court had abused its discretion in denying the plaintiffs' motion for a preliminary injunction.

"Nearly a decade ago, we held in the clearest possible terms that 'the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber,'" the Court of Appeals wrote. "[T]he First Amendment protects the public's right to witness all phases of Leavitt's execution, including the portion the State now shields from view."

The appellate court rejected the "legitimate penological objectives" set forth by Idaho officials to justify the existing execution procedure, including an assertion that the state was "protecting the dignity of condemned prisoners and the sensibilities of their family and fellow inmates." The Court of Appeals said it harbored "significant doubt" about that argument, as Idaho "already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death."

The state also raised concerns about preserving the anonymity of members of the medical team participating in executions. The Ninth Circuit said the use of medical garb was a practical alternative to conceal the identities of the team members. Moreover, Idaho failed to provide any support "for its speculation that it may be unable to recruit and retain medical team members to participate in executions" should witnesses be allowed to see the entire execution procedure.

The Court of Appeals noted that the plaintiffs would suffer irreparable harm if they were not permitted to view Leavitt's execution in its entirety, and that it was in the public's interest that they be allowed to do so. The State of Idaho "missed opportunity after opportunity to bring its execution procedures into compliance with the clear law of the Circuit," the appellate court wrote.

Instead, Idaho "persisted in its intransigence" even after the Ninth Circuit had "suggested at oral argument that a voluntary amendment (like the one Arizona recently adopted) might avert the need for an injunction."

On remand, the district court was ordered to enter an "injunction forthwith, and in any event prior to the impending execution of Richard Leavitt." In addition to the Associated Press, the plaintiffs in the case included the Idaho Press Club, The Idaho Statesman, Pioneer Newspapers, TPC Holdings, Cowles Publishing Company, Lee Enterprises, The Spokesman-Review and Idahoans for Openness in Government. They were represented by Lewiston, Idaho attorney Charles A. Brown. See: Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012).

Leavitt, 53, was executed on June 12, 2012 – just four days after the Ninth Circuit's ruling was released. For the first time in Idaho, media representatives were able to witness an execution from beginning to end. Leavitt had previously professed his innocence but did not make a final statement as he was put to death. The execution team wore surgical masks to protect their identities.

"I am grateful that we have four media witnesses here to tell you what they saw. Our goal was to make this as professional as possible with dignity and respect, and I believe we met that mark," said Idaho DOC director Brent Reinke.

Of course, if state officials were truly grateful for the media scrutiny, that makes one wonder why the state resisted changing its execution procedure for years, requiring media organizations to file a lawsuit which the state then contested.

Additional sources:,,, Huffington Post

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Related legal case

Associated Press v. Otter