STATEMENT ON BEHALF OF THE ASSOCIATED PRESS, KENTUCKY AP BROADCASTERS,
THE KENTUCKY PRESS ASSOCIATION, THE COURIER-JOURNAL, THE LEXINGTON
HERALD-LEADER AND THE KENTUCKY BROADCASTERS ASSOCIATION GIVEN BY JON
L. FLEISCHAKER ON JANUARY 29, 2010 REGARDING KENTUCKY'S PROPOSED
EXECUTION PROTOCOL.
KRS 431.250 permits certain persons, including nine media representatives, to
attend an execution. (It states, "The following persons, and no others, may attend an
execution: ...") The statute does not provide that the persons merely witness the
execution. It says they "attend."
The General Assembly placed no limitations on what the persons in attendance at
an execution may and may not see. Therefore, the only reasonable conclusion is that the
General Assembly intended no such limitations. The General Assembly intended that the
witnesses be present and experience what happens in the execution chamber. As to time,
there is no reason to think that "attend an execution" means attending anything less than
the whole execution -- from the time the inmate and the execution team enter the
chamber until the time the inmate is confirmed to be dead. "Attending" means both
seeing what happens and hearing what happens during that whole time frame.
Webster's relevant definition of the word "attend" is "to be present at." When the
curtain is closed and the witnesses are prevented from seeing what is happening in the
execution room, they can no longer be deemed "to be present at" the events transpiring on
the other side of the curtain. The closing of the curtain at any point in the execution
procedure is therefore contrary to the intent of the General Assembly as expressed in
KRS 431.250.
The media are the eyes and ears of the public. Our courts have held in similar
circumstances that the media have status as the public's representatives and serve a
unique function in fulfilling the public's right to know.
The death penalty is the exercise of the ultimate penal power of the state. It also
is a signature issue of our time. There is no reason to exclude the media from any portion
of the exercise of that ultimate power.
The proposed protocols for execution both by electrocution and lethal injection
call for excluding the attendees from critical moments of the execution. During lethal
injection, the proposed protocol calls for the curtain to be closed and the attendees
therefore to be excluded while the condemned inmate is brought into the execution room,
strapped onto the gurney, and fitted with intravenous and other lines. Likewise, in the
proposed electrocution protocol, the curtain is to be closed and the attendees are to be
excluded while the condemned inmate is brought into the chamber and strapped into the
chair and while the hardware of the procedure is put in place. In each proposed protocol,
after the injection or current is administered, the curtain is again closed while the warden
views the condemned for signs of life and again while the coroner and a physician verify
the death.
This proposed process provides the media, and by extension the public, with
considerably less access than is required by the phrase "attend an execution." It also
proposes steps backward from past practice. In 1997, during the execution of Harold
McQueen in the electric chair, attendees were in their seats and the curtain was open
when Mr. McQueen was led into the execution chamber. The curtain remained open
while he was strapped into the chair, and while the execution gear was put in place. The
curtain remained open during the execution and during the examination of the body for
the purpose of determining that he was dead. The curtain was not closed until the warden
declared the execution completed. This level of openness was achieved without any
adverse consequences to anyone.
By contrast, the proposed protocol calls for multiple openings and closings of the
curtain during executions, whether by electrocution or by lethal injection. Therefore, for
no good or explicable reason, the proposed protocol provides less information to the
media, and therefore to the public, than has been provided in Kentucky in the past. It is
reasonable to ask why there is a need for the presence of a curtain at all. KRS 431.250
makes no mention of a curtain or of any permissible obstruction of the view of the
attendees whose presence the statute authorizes.
It is particularly objectionable in the case of the proposed lethal injection protocol
that the condemned inmate is to be brought into the execution chamber and fitted with
intra-venous and other lines prior to the opening of the curtain. During the 2008
execution of Marco Chapman, the attendees were not led into the witness room until after
Mr. Chapman was placed on the gurney and all lines were in place. The public was
deprived of the knowledge of what transpired during the time when the lines were placed
in Mr. Chapman. The legislature provided for media attendance at executions for a
reason: To be the eyes and ears of the public, so that the public can know how the death
penalty is carried out in Kentucky. By closing off this critical stage of executions to
public view, the proposed protocol seek to deprive Kentuckians of information they are
entitled to have.
The General Assembly clearly intended for the media to attend executions and all
matters related to executions. The language of the statute is simple. There is no
exception.
As a final point, there are some evidently unintended language problems with the
proposed Section 3 of 501 KAR 16:300 concerning media procedures. Subsection 4 of
that section could be read to limit questions at the press briefings to those submitted in
writing. The press should be permitted to ask questions orally and language should be
added to make it clear that Subsection 4 does not preclude oral questions.
Additionally, Subsection 5 could be read to preclude "media witnesses" from
using audio or video recording devices in the media staging area, if the staging area is "on
the grounds of the penitentiary where the execution is held." The apparent intent of
Subsection 5 is to prohibit audio or video recording "during the execution," as KRS
431.250 requires, and therefore it should be redrafted to reflect that limitation and
nothing more. If the intent of Subsection 5 is to limit use of audio or video recording by
media witnesses to an extent greater than is set out in KRS 431.250, then the limitation is
not authorized by statute and should be deleted.
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