Seventh Circuit bars reporters from Indiana executions

(CN) – A Seventh Circuit panel on Friday upheld an Indiana law barring media access to state witness executions, finding that the First Amendment does not guarantee special access to the press.

“Journalists remain free to interview witnesses, report on any aspect of the proceedings and comment as they wish on the state’s choice to allow the death penalty or to execute a particular person,” US District Judge Michael Scudder, an appointee of Donald Trump. has written for the majority 2-1.

Indiana law limits execution attendees to the warden of the state prison, those assisting in the execution, the prison doctor, another physician, the inmate’s spiritual advisor, the prison chaplain, up to eight adult family members and up to five unspecified others.

It also provides a designated area for the press, but does not allow them to witness the executions live. The Associated Press and other news outlets brought the challenge to Indiana’s media ban to be present as the state resumed executions after a 15-year hiatus.

The appellate panel, which heard oral arguments on the case in February, said the First Amendment does not guarantee special access to the press, which would not be given to the general public.

In particular, the panel majority found that the news outlet’s right of access argument—based on the Supreme Court’s recognition of a limited right to access certain government proceedings—stops applying to executions.

“The Supreme Court has only ever used it to assess whether the public has a right of access to traditional aspects of criminal proceedings,” Scudder wrote. “An execution is not like a trial.”

The execution takes place outside the trial process, the court found, as the fact-checker has already established the guilt and the court has imposed the sentence and closed the case.

Although the law does not expressly bar journalists, the plaintiffs argued that preventing them from seeing the execution firsthand treats them less favorably than members of the public because they are members of the press.

The majority was also unconvinced by this argument, noting that the high court has not extended such a broad definition of free exercise to the Press Clause.

The majority also found that a more open public review of an execution does not provide a “check on the activities of judges and litigants” or “encourage more accurate fact-finding,” as required by Seventh Circuit precedent in United States v. Eppinger.

Executions have not historically been open to the press or the general public in many parts of the country since the last public execution in the United States, which occurred in 1937, according to the panel.

During oral arguments, attorney Megan Michelle Smith argued on behalf of the state that the law protects certain standards of decency that have turned state executions from public spectacles into “private and less barbaric” events.

In the original lawsuit, news outlets highlighted the “brutal” execution of William Vandiver in Indiana, who was convicted of murdering his father-in-law and whose execution required multiple applications of electricity before he was pronounced dead.

HAD cloudy public reports of what happened, with a prison spokesman saying simply that the execution “did not go according to plan”.

In a dissent, U.S. District Judge Candace Jackson-Akiwumi, a Joe Biden appointee, wrote that the government cannot be held accountable to the public in an execution chamber without reporters present.

“A government exercises its greatest power when it ends a person’s life,” Jackson-Akiwumi wrote. “As I see it, such severe and irreversible punishment in the name of ‘the people’ must be observable to be consistent with the Constitution. . . . But the public cannot oversee what it cannot observe.”

The majority acknowledged that increased control over the process could lead to more humane executions, but the benefits to the public did not outweigh the rights of the imprisoned person.

“As Indiana points out, allowing uninvited outsiders with no immediate connection to the underlying crime to watch an inmate die risks offending the dignity of their final moments,” Scudder wrote for the majority, which also included U.S. District Judge Doris Pryor, a Biden appointee.

The plaintiffs are represented by the Journalists’ Committee for Freedom of the Press, which could not immediately be reached for comment.