Fordham Law


Video of a Lethal Injection Reopens Questions on the Privacy of Executions

Deborah Denno in The New York Times, July 23, 2011

Media Source

As Andrew Grant DeYoung died by lethal injection in a prison in Jackson, Ga., on Thursday night, a video camera watched silently.

The camera recorded his last words — “I’m sorry for everyone I’ve hurt” — and his eyes blinking as the drugs took effect. It registered his last breaths and the time of his death: 8:04 p.m.

For decades in the United States, what goes on inside the execution chamber has been largely shrouded from public view, glimpsed only through the accounts of journalists and other witnesses.

But the video recording of Mr. DeYoung’s death, the first since 1992, has once again raised the possibility that executions might be made available for all to see. In the process, it has reignited a widespread debate about how bright a light to shine on one of the most secretive corners of the criminal justice system.

Legal experts say the decision by Judge Bensonetta Tipton Lane of Fulton County Superior Court to allow the taping in Mr. DeYoung’s case opens the way for defense lawyers across the country to push for the video documentation of other executions. And it is inevitable, many experts believe, that some of those recordings will make their way onto television or even YouTube, with or without the blessings of a court.

Brian Kammer, a defense lawyer who argued for allowing Mr. DeYoung’s execution to be recorded, said that documenting the death was essential because of the controversy over the drugs used in lethal injections.

“We’ve had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence,” Mr. Kammer said.

Mr. DeYoung, who was convicted of the 1993 murders of his parents and 14-year-old sister, was given a three-drug cocktail, including pentobarbital, a sedative often used to euthanize animals. Critics have argued that the use of pentobarbital represents cruel and unusual punishment.

In pushing for the video, the lawyers argued that there were problems with an execution in June in Georgia that used the drug; the condemned man, Roy Blankenship, was described by a medical expert as jerking, mumbling and thrashing after the injection was administered. According to an account of the execution in The Atlanta Journal-Constitution, Mr. DeYoung “showed no violent signs in death.”

Lawyers for the state attorney general opposed the recording, saying that it would threaten security and that “in this day and age of almost thoughtless dissemination of information, there exists a credible risk of public distribution.”

After Mr. DeYoung’s execution, the video was sealed and sent to a judge’s chambers for safekeeping, and Mr. Kammer, for one, said he hoped it stayed hidden. “It’s a horrible thing that Andrew DeYoung had to go through, and it’s not for the public to see that,” he said.

But Douglas Berman, a professor of law at Ohio State University who commented on the issue on his blog, Sentencing and Law Policy, said, “I think it would be foolish for anybody who is authorizing or supervising the videotaping of executions to assume that it will always remain sealed and unseen.” Mr. Berman added, “Somewhere, somehow, at some point, this will become publicly accessible.”

Whether that development would be beneficial or harmful has for years been a subject of much contention. Deborah W. Denno, a professor at Fordham Law School who is an expert on the death penalty, says videotaping executions is important because it provides objective evidence that is not dependent on eyewitness accounts. The decision to allow the recording of Mr. DeYoung’s death was a sign of the courts’ growing awareness of the need for transparency, Ms. Denno said.

“Presumably,” she said, court officials “are going to act responsibly, and the tape will never see the light of day.” But if such videos become public, she said, it might not be such a bad thing. She noted that television cameras are allowed in courtrooms and that the public can take tours of prisons.

“Most of what we do in the criminal justice system in terms of punishment is something that is allegedly open to the public,” Ms. Denno said, “and this is the ultimate form of our process.”

Mr. Berman was also in favor of opening executions to public scrutiny. “I think that this is the kind of government activity that ought to be publicly known about,” he said. Videos of executions carried out in other countries are readily available on YouTube, he pointed out, as are images of violence of all kinds.

But William Otis, a former chief of the appellate division at the United States attorney’s office in the Eastern District of Virginia, said that although he favored the death penalty, the idea of broadcasting executions made him uncomfortable.

“There’s something that I think would give a normal person pause about making readily available pictures of executions,” Mr. Otis said. “Who’s going to watch stuff like that?” He added that if the videos were to be made public, graphic depictions of murders and their effects on victims should go alongside them.

In an execution, “the defendant seems to be so alone and helpless and sympathetic, and in that setting, that’s right,” Mr. Otis said. “He’s a human being, and he’s about to be put to death.” But “to have that out there by itself is misleading,” he added.

Executions in the United States have not always been private. In 1936, the last public hanging was held in an empty lot in Owensboro, Ky., before an estimated 20,000 people.

Starting in the 1800s, said Stuart Banner, a professor of law at the University of California, Los Angeles, public taste began to shift away from such executions. “Before that, the whole idea was that this would be a good deterrent,” Mr. Banner said. “People would bring their kids. It was a good moral lesson.”

Complaints about the behavior of the mob — some people laughed and pickpockets roamed the crowds — and concerns about the brutality of public executions eventually put an end to the spectacles. The advent of the gas chamber and the electric chair sealed the event’s privacy: neither could be used outdoors.

But challenges to the closed-door nature of executions continued, most of them unsuccessful. A public television station in San Francisco sued to be allowed to broadcast the execution of Robert Alton Harris at San Quentin in 1992 but lost the suit. Other bids to videotape executions have been turned down by the courts.

Mr. Berman said he was less worried about videos of executions being misused if they became widely available than he was about people becoming indifferent to them.

People might say, “Gosh, it looks like what they did to my pet,” he said.