By Kevin Fixler
Idaho Statesman
(Idaho Statesman) — A group of news outlets, including the Idaho Statesman, sued the Idaho Department of Correction in federal court Friday, alleging that the state’s execution practices do not meet federal public transparency requirements while carrying out the death penalty.
Led by The Associated Press, the three outlets, which also include East Idaho News in Idaho Falls, seek to force the Idaho prison system to grant additional access to media witnesses, who act as a proxy for the public during executions. They ask that a U.S. District Court judge require prison officials to provide the media with the ability to view a concealed area at the state’s maximum security prison where members of the execution team administer lethal-injection drugs.
As part of the lawsuit, the news outlets requested that a judge issue a preliminary injunction to prevent Idaho from pursuing any executions until the legal matter is resolved.
Former U.S. Attorney for Idaho Wendy Olson, now a partner at private law firm Stoel Rives in Boise, is representing the three news outlets. She asserted a violation of First Amendment rights of the press in the filing, because media witnesses in Idaho are limited in what they can report about the prison’s “medical team room” before, during and after a lethal-injection execution.
In that room, the execution team prepares and labels syringes with the lethal injection drugs, and also monitors the execution process when team members depress the syringes and inject the drugs into the prisoner, the lawsuit said. Media witnesses are unable to see into the room from the public observation area because it is obscured by a wall.
“IDOC’s practice, procedure, protocol, and policy prevent execution witnesses from observing the entirety of the execution process both visually and audibly, so that the purpose behind witnesses’ attendance at executions is severely impaired,” the legal filing read. “IDOC excludes witnesses from observing fundamental aspects of the execution process that occur within the medical team room in violation of the First Amendment.”
Rebecca Boone, a Boise-based correspondent with the Associated Press, acted as a media witness during Idaho’s most recent attempt to execute a prisoner earlier this year. In February, prison officials called off the lethal injection of death row prisoner Thomas Creech, 73, after nearly an hour of trying to find a suitable vein for an IV.
Boone, a journalist of 26 years, most of that with the AP, previously acted as a witness to the state’s most recent executions: Paul Rhoades in 2011 and Richard Leavitt in 2012.
In a sworn declaration filed with the lawsuit, Boone said she sought visual access to the medical-team room during the Leavitt and Creech executions but each time was rebuffed by IDOC leaders, including current Director Josh Tewalt. The lawsuit names Tewalt as the case’s defendant, in his official capacity tasked with setting and overseeing the state prison’s execution policies.
Based on her experiences as an execution witness, Boone said the IV lines carrying the lethal injection drugs arrive through a small opening in the wall from another room, where the execution team is obscured, and into the execution chamber, where witnesses can view the prisoner strapped to the gurney.
“I have never seen the medical team room, but based on my interviews with IDOC officials and IDOC policy documents, I believe it is where the lethal injection chemicals are administered into the IV lines attached to the condemned person,” Boone wrote in her signed declaration.
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Not allowing media witnesses the ability to see all aspects of an execution conflicts with legal precedent set by the 9th U.S. Circuit Court of Appeals, Olson wrote in the lawsuit. In that 2002 decision, the court ruled that “independent public scrutiny — made possible by the public and media witnesses to an execution — plays a significant role in the proper functioning of capital punishment.”
In 2012, the AP — backed by 13 other news outlets, including the Statesman — sued IDOC ahead of Leavitt’s execution because a separate portion of the state prison system’s lethal injection process was kept behind a curtain. They cited the 9th Circuit’s prior decision. The same court sided with the news outlets, and the prison system revised its policy in the days leading up to Leavitt’s lethal injection to provide media witnesses greater visual access to his execution.
IDOC recently revised its execution policies
Friday’s lawsuit comes after IDOC revised its execution policies in October, almost eight months after the failed attempt to execute Creech. The prison system paid to renovate a portion of the execution chamber to create an “execution preparation room,” where the prisoner will first be assessed by the execution team for what kind of vein access will be necessary to carry out a lethal injection.
Idaho hasn’t executed a death row prisoner since June 2012, and just two in more than 30 years. The state’s preferred method is lethal injection, at the Idaho Maximum Security Institution south of Boise, with a firing squad as the backup method with a law that took effect in July 2023. Idaho Department of Correction Provided
The upgrades cost $314,000 and also included the addition of live closed-circuit video and audio feeds to broadcast what IDOC officials called the entirety of the execution process to witnesses to meet federal requirements. But Tewalt told Boone in an interview that IDOC did not add the cameras to the medical-team room and did not plan to, she wrote in her declaration.
“As it stands, anything that happens in the medical team room during an execution will be done in complete secrecy and free from any public scrutiny,” Olson wrote in the lawsuit.
Chadd Cripe, editor of the Statesman, added in a sworn declaration filed with the lawsuit that news media are unable to accurately report on the whole of Idaho’s capital punishment system without being able to see what happens in the prison’s hidden room during an execution.
“Without access to the medical team room, designated media representatives will not be able to fully and accurately inform the public about the functioning of capital punishment and whether execution by lethal injection comports with the evolving standards of decency which mark the progress of a maturing society,” Cripe said in the filing.
The three news outlets now ask that a federal judge step in to force IDOC to add the closed-circuit video and audio to the medical team room — or alternatively to add a viewable window — to meet the federal requirements for uninterrupted viewing of an execution. They also seek attorneys fees from the state.
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