"For almost 20 minutes while Clayton Lockett was dying, the assembled press and other witnesses were deprived of the right to observe the proceedings," the lawsuit alleges. "The press was also deprived of the opportunity to verify the nature and source of sounds emanating from the execution chamber, which indicated pain and suffering." This, the plaintiffs argue, violates the First Amendment's guarantee of a free press.
The suit asks the court to make two major changes to Oklahoma's execution protocol: first, to declare that the state cannot deprive witnesses of their visual or auditory access to the execution at any point once it begins, and second, to force the state to film and record all executions it performs from start to finish. In their filing, the plaintiffs discussed the importance of a media presence in the death chamber at length:
As independent witnesses to government proceedings, members of the news media provide public scrutiny, which enhances the quality and safeguards the integrity of the death penalty process. Reporting by press not associated with the condemned, the victim, or the state of Oklahoma is critical to assuring the public that they have thorough and objective facts about the execution process. Unbiased reporting is therefore necessary to the perceived and actual legitimacy of the execution process.
Public scrutiny of executions was perhaps the earliest check on the process. "In the medieval era, public executions were meant to accomplish two goals: first, to shock spectators and, second, to reaffirm divine and temporal authority," Joel F. Harrington wrote in his history of medieval executions. "A steady and reliable executioner played the pivotal role in achieving this delicate balance through his ritualized and regulated application of violence on the state's behalf." For the executioner, this balance meant beheading the condemned in a single stroke after he or she made a religiously framed journey of penance. Poorly performed executions could lead the community to lose trust in, or even retaliate against, the man who swung the axe.
In modern America, the constitutional has replaced the spiritual. Only after a laborious appeals process and a flurry of last-minute pleas for clemency can the condemned die, and even then, it must be swiftly and without pain or suffering. What defines "public" has also changed over time. Each state now has different protocols for who can observe an execution behind the prison walls. The families of both the victims and the condemned are often present. Virginia keeps a list of 20 to 30 volunteer witnesses, some of whom attend multiple times. Citizens can even participate in some states: In lieu of a full-time position, Florida pays members of the public $150 to anonymously execute one another.
But an informed reporter is often the most impartial witness present—and therefore one of the most vital. The Associated Press attends every execution in the United States by policy; Michael Graczyk, its Texas correspondent, has witnessed hundreds. (He lost precise count long ago.) "At an execution, the press serves as the public's eyes and ears," said freelance journalist Katie Fretland, a plaintiff in the lawsuit and a witness to Lockett's botched execution. "The government shouldn't be allowed to effectively blindfold us when things go wrong. The public has a right to the whole story, not a version edited by government officials."