Capital Punishment & Public Executions

For those following, if you haven’t seen it yet, SCOTUSblog has the 70-page oral argument transcript from Baze v. Rees posted at their site. SCOTUSblog also “wikis” major or more notable cases such as Baze.

“The Supreme Court has never held that any method of execution violates Eighth Amendment ‘cruel & unusual punishment’” sanctions, a National Law Journal article last year said. It’s being asked to do so now, but is that “addressing the constitutionality of a method of execution or a legal standard the lower courts can use in determining whether a method of execution violates the Eight Amendment?”

“The need for one standard is obvious from the flow of litigation throughout the country that followed the High Court’s 2004 Nelson v. Campbell ruling, and 2005 Hill v. McDonough,” ( which allowed civil rights challenges to lethal injection), the article continued.

First responses don’t seem all that encouraging.

Meanwhile, another spectacular flashes on radar as the U.S. District Court for Eastern Arkansas, also last Monday, ruled that journalists and the public does not have an all exclusive right to view executions under the First Amendment. (Here) (Ruling)

“The Supreme Court has never recognized a First Amendment right of access to executions,” District Court judge Susan Webber wrote, and, in fact, in 1890, in determining that Minnesota’s restrictions on access to executions didn’t violate ex post facto laws, the Court in Holden v. Minnesota stated that “the number & character of those who may witness the execution, and the exclusion altogether of reporters or newspaper representatives… are regulations which the legislature, in its wisdom, and for the public good, could legally prescribe.”

In 1978 it reversed a Ninth Circuit ruling in Houchins v. KQED, holding that “the media has no special right of access to prisons beyond that afforded the general public.”

Webber did add that in 2002, the Ninth Circuit became the only federal appeals court to hold that “the public enjoyed a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber..,” applying the so-called “logic & experience test,” derived from the Supreme Court’s decision in Richmond Newspapers v. Virginia, in 1980. While that test has been used in other venues, it has never been applied beyond the context of judicial proceedings that are part of the criminal trial process. Having so noted, she proceeded by writing that “in Furman v. Georgia, Justice Brennan noted that the American practice of punishing criminals by death had greatly changed over the years, stating that ‘concern for decency & human dignity … has compelled changes in the circumstances surrounding the execution itself. No longer does out society countenance the spectacle of public executions… we reject them as debasing and brutalizing to us all.”