By Spencer Philps
Four news organizations, including BH Media Group, which publishes The Daily Progress, are suing the Virginia Department of Corrections over procedures they believe violate the public’s First Amendment right to witness state executions in their entirety.
Members of the public, including the press, are allowed to witness executions. But the plaintiffs argue that restrictions put in place by VADOC prevent witnesses from observing crucial steps in the execution process, including the condition of an inmate as he or she enters the execution chamber; if there was difficulty administering the intravenous lines or completing the unknown steps in the electrocution process; or if the inmate was harmed during the procedure.
The plaintiffs in the case—BH Media Group, Associated Press, Guardian News and Media, and Gannett, are being represented by The Media Freedom and Information Access Clinic at Yale Law School.
“Our contention is that being able to see the entire process serves an important function both in terms of ensuring that things are being done according to procedure, and educating the public about whether the procedure is working properly or is consistent with community values,” says David Schulz, the clinic’s director.
Virginia is one of the 30 states in the U.S. that allows capital punishment. Since the death penalty was reinstated by the Supreme Court in 1976, Virginia has executed 113 individuals, the second most in the country behind only Texas.
According to the complaint filed by the news organizations September 23, members of the public can watch the execution from an adjacent room through a window that looks into the chamber. But once the inmate enters the chamber, a curtain is drawn that remains closed until prison officials have strapped down the inmate and the lethal injection has been administered. A second curtain blocks the view of the executioner and delivery of the lethal injection throughout the entire procedure.
In the case of execution by electric chair —Virginia is one of nine states where the electric chair is still authorized—the curtain isn’t removed until the inmate is strapped to the chair and the executioner performs three actions (the specifics of which are classified and redacted from the publicly available execution manual) before the actual execution.
The inability of witnesses to see inmates entering the execution chamber is a new restriction that VADOC introduced in 2017, just weeks after the controversial execution of Ricky Gray. It took far longer than normal—over half an hour—for prison officials to set the intravenous line that would administer the lethal drug. Because the second curtain inside the chamber blocked their view, the witnesses present were unable to discern why the procedure had taken so long, or whether Gray had been harmed in the process.
“It does seem at least that there’s an inference that [the change in procedure] was motivated somewhat to prevent the revealing of the problems that could happen and the pain that can be inflicted in trying to place the intravenous tubes,” Shulz says.
William Morva, who was sentenced to death in 2008 for the 2006 murder of a hospital security guard and a sheriff’s deputy, has been the only individual executed in Virginia since 2017.
VADOC said it would not comment on the pending litigation. The Virginia Attorney General’s Office did not reply to requests for comment.
The ACLU of Virginia has been a vocal advocate in the fight against what it refers to as “execution secrecy” in Virginia. While the ACLU-VA opposes the death penalty, the group argues that, as long as the death penalty exists, it must be done in the most transparent and open fashion possible.
“It’s the most final and irreversible act a government can take, and for it to undertake that act in layers of secrecy…is unacceptable,” says Brian Farrar, ACLU-VA’s director of strategic communications.
In 2018, the group issued a letter to Governor Ralph Northam, calling on him to “lift the veil of secrecy around executions in Virginia.”
Schulz predicts the case will move quickly through the court. The U.S. District Court for the Eastern District of Virginia, referred to as a “rocket docket,” is the fastest federal civil trial court in the country.
Greensville Correctional Center is the facility used by Virginia for capital punishment, although the state hasn’t executed anyone since convicted murderer William Morva was killed by lethal injection July 6, 2017.