The new witness protocol, currently a draft that is in its final stages of approval, includes the use of television monitors to show the inmate entering the death chamber and being strapped down, as well as the insertion of the IVs, which had both previously been shielded from public view. The new technology has already been installed, and officials say the protocol will be finalized within the next week.
Through public disclosure requests, the AP had sought information about any potential changes to execution protocols. State corrections officials spoke with the AP about the new procedures this week. The change is in response to a 2012 federal appeals court ruling that said all parts of an execution must be fully open to public witnesses. That ruling was sparked by a case brought by the AP and other news organizations who challenged Idaho's policy to shield the insertion of IV catheters from public view, in spite of a 2002 ruling from the same court that said every aspect of an execution should be open to witnesses.
"We have been working on this for many, many months," Dan Pacholke, assistant secretary of the prisons division at the state Department of Corrections, said Wednesday.
Pacholke said they have been researching the technology needed to make the change and followed the process currently used by Arizona, which provides an overhead view via TV monitor of the IV insertion during an execution.
"It really does provide greater viewing capacity to the witnesses," he said. "It's going to take an overhead view to provide the view that the court wants."
Under the draft proposal, which is currently under final review within the Department of Corrections, witnesses will watch the inmate enter via monitors from behind a closed curtain to the death chamber, according to Corrections Secretary Bernie Warner. The curtain will be lifted after the inmate is strapped down, and the inmate will be given an opportunity to make a final statement. The curtain will close again, and the insertion of the IVs will be done via TV monitor. The curtain will rise again after the needle has been inserted.
Warner said that while some minor changes could still be made to the draft proposal, the main changes concerning full viewing access for witnesses will not.
The San Francisco-based 9th Circuit Court of Appeals originally ruled in 2002 on witness viewing during an execution, and that ruling applied to the nine Western states in the court's jurisdiction. But until the 2012 ruling, four states initially kept part of subsequent executions away from public view: Arizona, Idaho, Washington and Montana.
The states had argued the policy was necessary to protect the anonymity of the execution team. Open government and journalism groups countered that witnessing all aspects of an execution is the only way to determine if it is being properly carried out. The media also argued there was a First Amendment right to view the entire process.
Arizona and Idaho changed their procedures as a result of the 2012 ruling that same year. Arizona now uses video monitors to show the IV insertion, but Idaho witnesses see the inmate strapped to the table and the insertion of the IVs through a window. According to an execution protocol approved last year in Montana, IVs are still inserted out of view of the witnesses.
Katie Ross, an attorney who has handled death-penalty cases and is director of the Washington Death Penalty Assistance Center, said that the move by the department is important for transparency of the entire process.
"Everything the state is doing when they're in the process of killing a human being should be scrutinized," she said. "When mistakes are happening, the media, as well as the witnesses present, should be able to see that and accurately report it."
Nine men await execution at the Washington State Penitentiary in Walla Walla. No executions have occurred since the 2012 ruling, and none are currently scheduled. But the state Supreme Court just last week rejected a petition for release from death row inmate Jonathan Lee Gentry, sentenced for the murder of a 12-year-old girl in 1988. Gentry could be the first execution in the state since September 2010, when Cal Coburn Brown died by lethal injection for the 1991 murder of a Seattle-area woman.
"This is the most extreme criminal justice sanction handed out by the courts, and this seriousness is not lost on those of us involved," Pacholke said. "Our objective is to carry out the sanction administered by the court and do so consistent with the most recent court rulings."