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July 21, 2011

Why shouldn't Georgia lethal injection — and all executions — be recorded on video?

Rainey_Bethea_hanging The leading question in the title of this post is prompted by the fascinating execution debate unfolding in Georgia over the last few days.  This ABC News story provides the background:

The Georgia Supreme Court and U.S. Supreme Court let stand a Fulton County, Ga., judge's order to videotape an execution, but that execution was postponed until Thursday evening. This is thought to be the first time a lethal injection will be recorded and the first time in almost two decades that an execution will be recorded.

The original decision to videotape the execution came after attorneys claimed that one of the drugs administered in the lethal injection may cause unnecessary suffering.

Andrew Grant DeYoung, 37, had been scheduled to be executed at 7 p.m. for the 1993 murders of his sister and parents, but the execution did not occur on schedule as appeals worked their way through the courts.

After the U.S. Supreme Court ruled on the case late Wednesday, Georgia prison officials delayed the execution until Thursday at 7 p.m. Georgia Attorney General Sam Olens would not say why the execution was rescheduled, according to The Associated Press.

DeYoung was charged with stabbing his family to death in hopes of receiving an inheritance he could use to fund a business venture.

Gregory Walker, another death row inmate, was the petitioner for the order requesting the videotaping. "The petitioner seeks such access in order to preserve potential evidence regarding whether the respondent and the Department of Corrections are taking appropriate steps to prevent needless suffering through the course of execution," said the order, signed by Superior Court Judge Bensonetta Tipton Lane on Monday.

The order added that the videotaping would proceed only if DeYoung was not opposed to it. After the execution, the tape is to be immediately sealed and no copies can be made. Though DeYoung consented to the video recording, his lawyers spent Tuesday in federal court arguing that the execution should be postponed until more is known about the controversial drug now being used in the executions.

This new AP story, headlined "Ga. court asked to reconsider video execution," reports that the top state lawyer in Georgia is still trying to block the video recording: 

The attorney general's office is asking a state judge to reconsider a ruling allowing the scheduled execution of Andrew DeYoung to be recorded on video. The recording was requested by another death row inmate seeking evidence Georgia's reconfigured lethal injection procedure.

State prosecutors filed the request in Butts County early Thursday, less than a day after DeYoung's execution was delayed. The Georgia Supreme Court had upheld the lower court's order allowing the video, citing a procedural error by the state. The matter was expected to come before Georgia's top court again Thursday.

Even novice American legal historians likely know that there is a long tradition of public executions in the United States. Thus tradition and constitutional originalism would not seem to suggest obvious reasons why modern executions should have to be kept secret.  (The picture above is a (in)famous photo of the last public hanging in the United States which took place in Kentucky in 1936.  The website Execution Today has this effective account of the execution.) 

Perhaps more importantly, as this Georgia case highlights, there is on-going uncertainty and widespread litigation about the efficacy of, and circumstances surrounding, modern lethal injection protocols.  For this reason, I asked more than four years ago in this post "Shouldn't all executions now be recorded on video?", and I continue to see the legal value and litigation importance of making a visual record of all modern executions.

Of course, I fully acknowledge that any video recording of an execution could be misused, but the same can be said for lots of video of government functions. Moreover, I think transparency and public access to important governmental activities ought to be a paramount concern in these kinds of debates. (But, of course, my interests here are surely influenced by my role as an academic and blogger, and I might feel very different were I a participant in an execution.)

Some older related posts:

July 21, 2011 at 10:50 AM | Permalink

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Comments

Just as I think all court proceedings should be recorded on the most reasonable available media I would say the same of executions. The continued reliance on written memorializations is simply antiquated.

Posted by: Soronel Haetir | Jul 21, 2011 10:57:47 AM

You need a multiple murder's consent to video his lawful execution? What has the world come to?

Posted by: Steve Prof | Jul 21, 2011 10:58:08 AM

If the purpose of executions is to dissuade crime, why aren't executions broadcast on all major tv channels? Reading some guy died wouldn't dissuade anyone. Watching them might. Or it might dissuade executions. Either way...

Posted by: NickS | Jul 21, 2011 10:58:33 AM

I have no objection to videotaping executions so long as there is a requirement that, whenever the videotape is played, it be accompanied by a montage of equal length of photographs of the murder scene, including the victim's corpse, plus photographs of the victim's autopsy.

If we're going to be taking a look at the result, we had best take an equal look at the cause.

When people see, for example, the videotape (made by the killer for his own amusement) of the sex/torture/murder of 9 year-old Dylan Groene, and then see a videotape of his killer's lethal injection, I will be happy to accept the public's verdict as to whether the execution is just.

Posted by: Bill Otis | Jul 21, 2011 11:50:39 AM

Bill, perhaps the victims' families and the public at large might object to you "requirement" or is it just another Bill Otis edict ??? --- so much for your claim of "democracy" the other day. You think your "requirement" just might infringe on the First Amendment????

Posted by: Steve Prof | Jul 21, 2011 12:02:59 PM

Steve Prof --

"Bill, perhaps the victims' families and the public at large might object to you "requirement" or is it just another Bill Otis edict ???"

And perhaps they might not. You don't know in advance, now do you?

In cases where no such objection is raised, what argument do you have that we should see the result (the execution) but be screened off from the cause (the murder)?

Posted by: Bill Otis | Jul 21, 2011 12:11:48 PM

Biil,

My objection would be based on the first amendment, your rule would be a significant non content neutral requirement. I would not so limit the choices of whoever is putting together a presentation. They might well wish to show the crime scene photos, the autopsy photos, happy photos of the victims before they were killed, then again they might not.

Posted by: Soronel Haetir | Jul 21, 2011 12:23:22 PM

Steve Prof --

"You think your 'requirement' just might infringe on the First Amendment????"

No, I don't.

Try reading some law. There is no First Amendment right to broadcast executions. Lawson v. Dixon, 25 F.3d. 1040 (4th Cir. 1994) (unpublished) (affirming district court’s dismissal of declaratory and injunctive complaint alleging First and Fourteenth Amendment right to videotape execution); Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977) (reversing district court ruling that press has First Amendment right to televise executions), cert. denied, 438 U.S. 914 (1979).

That being the case, IF the legislature wrote a statute establishing a privilege to broadcast executions, it could condition that privilege on the a requirement that police pictues of the murder scene and autopsy be shown as well.

Posted by: Bill Otis | Jul 21, 2011 12:30:11 PM

Bill,

The greater power seldom implies the lesser power. For example, employers are not required to hire anyone, but cannot refuse to hire for a prohibited reason (like race, sex, age, etc).

Posted by: Tim S | Jul 21, 2011 12:54:56 PM

@NickS
Or it might make them a spectacle for the perverse in our society.

Posted by: MikeinCT | Jul 21, 2011 12:55:31 PM

Bill, there you go again with another red herring and trying to bully your way out of your hopeless and frivolous legal argument. If media has a video of an execution they have a First Amendment right to show it -- with or with your edict of the crime scene. They have no First amendment right to videotape it in the first place and I have not suggested otherwise. Soronel is right on the money....your lack of basic first amendment law is as astonishing as your poor legal reasoning. You try reading and citing correctly the cases you cite.

Posted by: Steve Prof | Jul 21, 2011 1:21:27 PM

personaly bill i dont' consider cases like this one you posted!

"Lawson v. Dixon, 25 F.3d. 1040 (4th Cir. 1994) (unpublished}"

Legal or binding. If you have so little faith in your opinion that you won't PUBLISH it for the world to see. Keep your damn opininn TO YOURSELF!

Posted by: rodsmith | Jul 21, 2011 1:43:46 PM

but like you i think like any other govt procedure executions should be PUBLIC! but i don't think victim's informationi and photo's should be UNLESS you get the victim's family's concent. They have a right to privacy. I also think it's long past time we had a constutional amendmeent guaranteeing that right from ANYONE PRESS included unless they can show BRD the idividual is comitting a crime!

Posted by: rodsmith | Jul 21, 2011 1:45:37 PM

I believe Bill Otis' idea is a splendid one. The real reason these murderers end up on the gurney is often downplayed or obscured. If newspapers and TV news broadcasts showed a few victim autopsy photos when reporting on lethal-injection issues/inmates finding Jesus/inmates wanting to be spared so they can counsel troubled youth, etc., I think support for the death penalty would be even higher than it already is.

Posted by: alpino | Jul 21, 2011 2:00:04 PM

Referring to an unpublished opinion of the U.S. Court of Appeals for the Fourth Circuit, rodsmith writes to Bill Otis, "If you have so little faith in your opinion that you won't PUBLISH it for the world to see."

Bill! Have you been appointed to the Fourth Circuit?! When did that happen? Well, congratulations, my friend. I'll have to revise my opinion of President Obama if he really had the sense to appoint you.

The alternative hypothesis is that rodsmith doesn't know what an unpublished opinion is or who decides whether to publish it.

Posted by: Kent Scheidegger | Jul 21, 2011 2:33:23 PM

Bill Otis, Kent

which case was taken up the SCOTUS last night? The denial from the Georgia Supreme Court or the 11th Circuit? The ABC news story says SCOTUS "let stand" the decision by the Fulton County judge ordering the videotaping.

Posted by: DaveP | Jul 21, 2011 2:41:24 PM

Kent --

I was about to get appointed, but I got traded for an extension of the Interstate in Nevada.

Posted by: Bill Otis | Jul 21, 2011 2:48:27 PM

The reporter may be mistaken. The Supreme Court's order in the DeYoung case was a denial of stay of execution.

http://www.supremecourt.gov/orders/courtorders/072011zr3.pdf

Posted by: Kent Scheidegger | Jul 21, 2011 2:51:46 PM

I realize that but was wondering which case DeYoung took up to SCOTUS.

Posted by: DaveP | Jul 21, 2011 2:56:01 PM

alpino --

Thanks. The real reason behind the opposition to my suggestion is that those who oppose, or are critical of, the death penalty, want to concentrate attention and sympathy on the killer while covering up the often gruesome and heart-wrenching sight of what he did.

This is also why they won't even mention the Dylan Groene tape. If that were played publicly, so that people could see in graphic detail why we have a death penalty, support would skyrocket. It would exceed the 81% who supported the execution of Timothy McVeigh.

This of course has to be avoided at all costs, so a reason must be found to muzzle it. And that's what's really going on on this thread.

Posted by: Bill Otis | Jul 21, 2011 2:57:33 PM

DaveP --


Dave P --

My latest information is that the SCOTUS, in DeYoung, has denied both the state's motion to review the order allowing videotaping, and DeYoung's motion for a stay of execution, now set for 7 pm.


Posted by: Bill Otis | Jul 21, 2011 3:12:48 PM

If this execution is allowed to be videotaped, wouldn't the inmate (upon instructions from unscrupulous lawyers) have every incentive to put on a show before the anesthesia takes effect?

Posted by: justice seeker | Jul 21, 2011 3:17:52 PM

justice seeker

I was telling some of my attorney friends the same thing earlier today. I wonder if Blankenship was putting on a show.

Posted by: DaveP | Jul 21, 2011 3:19:08 PM

justice seeker and DaveP --

Absolutely it creates an incentive to put on a show. If the tape ever sees the light of day, I wonder if people will be reminded of this fact.

Posted by: Bill Otis | Jul 21, 2011 3:26:07 PM

If I remember correctly, the last videotape of an execution was back in 1992 in California. Robert Alton Harris. A federal district judge ordered it videotaped and sealed to be used in another case challenging the constitutionality of the gas chamber.

Posted by: DaveP | Jul 21, 2011 3:30:02 PM

"This of course has to be avoided at all costs, so a reason must be found to muzzle it. And that's what's really going on on this thread." -- Bill Otis

There you go again playing very fast and loose with the truth and creating your own narrative out of thin air. Nobody is trying to muzzle anything ...simply suggesting that your cockeyed requirement of forcing the press to publish crime scene photos violates the First Amendment....then you have suggest the "real reason" that folks on this blog oppose your patently unconstitutional suggestion is that they are sympathy towards the killer --another bizarre fantasy ...not one post on this topic has even remotely expressed sympathy for DeYoung--please stop making up facts....

Posted by: Steve Prof | Jul 21, 2011 4:17:29 PM

Bill Otis,

I would be curious as to how you would characterize my opposition to your proposed requirements, given my oft stated belief that we don't execute anywhere near enough offenders. Claiming that I oppose such a requirement because I want to see an end to executions would seem strained at the very least.

(Note that I am pretty much in total agreement with Steve Prof's observation that the power to not record executions, or to not make such recordings available says nothing about a power to compel speech in using such recordings if they are made available. I just don't see the courts accepting such a condition on using the product of government processes.)

Posted by: Soronel Haetir | Jul 21, 2011 4:38:32 PM

"Nobody is trying to muzzle anything ..."

Oh, no, nothing like that. It's just that they're trying to think of anything they can to keep the murder scene off the air, so the execution gets 100% of the coverage.

You can bark all you want, but you can't change the fact that it's a distortion to show the result (the execution) without giving equal and equally graphic coverage to the cause (the murder).

Posted by: Bill Otis | Jul 21, 2011 4:58:50 PM

Soronel --

"I would be curious as to how you would characterize my opposition to your proposed requirements..."

As misguided.

"...given my oft stated belief that we don't execute anywhere near enough offenders. Claiming that I oppose such a requirement because I want to see an end to executions would seem strained at the very least."

Actually, it would be false (not merely strained), which is why I have never claimed that YOU want to see an end to executions. But your argument is grist for those who do.

Posted by: Bill Otis | Jul 21, 2011 5:03:54 PM

DeYoung obviously has an incentive to put on a show. But he only can do that while he is conscious. Once the sedative kicks in and he's knocked out he will be incapable of putting on any more show. If the show ends quickly we'll know the sedative worked properly. If it takes an inordinately long time, we'll know something did not work as it was supposed to. In other words, ignore his antics and just look at your stopwatch.

Posted by: arfarf | Jul 21, 2011 5:10:08 PM

Well its on to the GA Supreme court again. Judge Lane denied the states request.

Posted by: DaveP | Jul 21, 2011 5:21:56 PM

Bill,

Three points. First, I did not intent to muzzle you, and if I'd realized how MANY different responses you would receive, I might not have made a response. But you said something quite provocative. No surprise that you provoked people.

Second, Georgia's opposition to recording and your proposed requirement for airing it come from the same sense that such a video standing alone would create sympathy for the executed. I agree with your sense, and I think it speaks poorly of the court of public concern that it can be so easily swayed by something that is emotionally resonant even when that is not the issue. The video is rational evidence in analyzing the proper method of execution, but hardly useful in rationally deciding whether the death penalty should occur at all.

Third, the emotionally driven court of public concern that worries you so much about this video is also the driving force for the popularity of the death penalty in the United States. Should we leave the existence of the death penalty to the popular will, which is driven by emotion and not rationality, then refuse to bow to popular will when it blows the other way? It raises the question of whether we really believe in the popular will at all.

Posted by: Tim S | Jul 21, 2011 5:30:25 PM

Tim S --

I don't think you were or are trying to muzzle me, and I hope I did not leave that impression.

"Should we leave the existence of the death penalty to the popular will, which is driven by emotion and not rationality..."

It's driven by both emotion and rationality, as is virtually every public policy decision. For example, if one believes the majority of deterrence studies, which show that the DP does in fact deter murder, one can rationally be in favor of the DP. This is to put entirely to one side the question whether, for some murders, mere imprisonment is proportional to the offense.

In addition, one must ask what the alternative is going to be to popular will. The UNpopular will? The views of those of the 30% minority who oppose the DP? What's the point of democracy if we forfeit majority rule?

"...then refuse to bow to popular will when it blows the other way? It raises the question of whether we really believe in the popular will at all."

I sure believe in it, subject to Constitutional constraints. As noted, I just don't know what legitimate alternative there is.

If, as I think, we should have majority rule, then ideally the majority should be as well informed as possible. If we are to broadcast lethal injections, then, in order to have a more informed public, we should also have equal, and equally graphic, broadcasting of the murder. Since that is almost always impossible, we can at least go for the next "best" thing, to wit, an equally long broadcast of the corpse and the murder scene in which the victim met his fate.

Posted by: Bill Otis | Jul 21, 2011 6:11:50 PM

What keeps the press from publishing bloody photographs of murder victims now? The debate over how far various media may go in showing photographs of a disturbing nature has been going on for years and will certainly continue to occur.

Executions are our tax dollars and policy decisions at work - what harm could possibly come from allowing interested citizens to participate as spectators. And nothing I can think of would enhance the capital punishment's deterrent benefit public executions.

Which raises the question - given the country's long history of well attended public executions, why did they ever stop?

Posted by: C | Jul 21, 2011 11:03:46 PM

no offense mr smart alick kent! but i was talking about the court system! You either MAKE a decison or you DON'T in either case it should be published for the world to see. These joke decison that don't get published for the world to see and to be applied to all case law in the country are jokes!

either stand up for your decisions or keep your mouths shut and get off the bench!

Posted by: rodsmith | Jul 22, 2011 1:17:52 AM

They don't generally show bloody photos because public furor at seeing it could hurt their bottomline. They don't have to suppress rape victims names, either, but they usually do, because people will get pissed.

Some public records laws make exceptions for dead victim photos/autopsy photos. Sometimes, journalists can see them, but they're not allowed to make copies.

Anyway, I can't tell if Bill Otis is specifically mandating for the press to include pro-victim footage along with pro-defendant footage. If so, it smacks of the fairness doctrine. Which is of questionable constitutionality - the old Supreme Court doctrine that upheld it is highly antiquated.

Posted by: Moron | Jul 22, 2011 11:08:49 AM

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