From public hangings in the town square to lethal injections witnessed by journalists, executions historically have mostly been carried out with at least some public scrutiny. That will not be the case in Indiana early Wednesday, when Joseph Corcoran is set to be put to death by lethal injection without any independent witnesses present.
The unusual secrecy is the result of state laws shielding information about the death penalty, and some First Amendment advocates and death penalty experts say the lack of transparency during the gravest of government punishments is alarming.
Media witnesses play a crucial role in executions by providing the public with independent, firsthand and factual accounts of an execution, said Robin Maher, executive director of the Death Penalty Information Center (DPIC).
“Media ensures government accountability and transparency in an otherwise closed and secretive process,” Maher said. “The decision to exclude media witnesses raises troubling questions about whether state officials lack the confidence or the ability to conduct the execution without botching it.”
The Associated Press aims to cover every U.S. execution because the public has a right to know about all stages of the criminal justice process — including when things do not go according to the government’s plans. Witnesses from the AP and other news organizations have been able to tell the public when executions went awry, including in Idaho, Alabama, Arizona, Oklahoma and Ohio.
Formal descriptions of lethal injections by prison officials are sometimes sanitized compared with the detailed accounts offered by journalists. Federal executioners who put 13 inmates to death by lethal injection during the last months of the Trump administration likened the process to falling asleep, while reports by the AP and other outlets described how the condemned persons’ stomachs shuddered as the pentobarbital took effect.
For Corcoran’s execution, journalists gathered outside the prison hoping to glean as much information as possible. Unlike prior executions, when reporters were at least allowed to wait in a conference room in the building, this time they were restricted to a parking lot.
In response to an AP request for comment, Indiana Department of Correction spokesperson Brandi Pahl cited the state law, which explicitly outlines who can be at an execution. Media witnesses are not listed.
“Any modifications to this law, including adding media witnesses, would require legislative action and cannot be changed at the discretion of the department or its leaders,” Pahl wrote in an email. “Updates will be shared simultaneously with all members of the media via email.”
Indiana prison officials did not immediately respond to an email requesting comment.
The earliest death penalty laws were recorded 3,800 years ago in the Code of King Hammaurabi of Babylon, according to the Death Penalty Information Center. Over the next 1,800 years, death sentences were often carried out by public crucifixion, drowning, beating, burning or impalement. By the 10th century, public hangings were the norm in parts of Europe.
The United States carried out executions in public settings until 1834, when Pennsylvania became the first state to move them into correctional facilities, according to DPIC.
Today the vast majority of the 27 states with capital punishment and the federal government recognize the need for public oversight via media witnesses.
Indiana and Wyoming are the only states that prohibit them, according to the DPIC. Wyoming has executed one person in the last half-century, killing Mark Hopkinson by lethal injection in 1992.
Kris Cundiff, an Indiana attorney working with the Reporters’ Committee for Freedom of the Press, said executions represent the “apex of government action.”
“Carrying out a death sentence is arguably the ultimate exercise of state power and state authority,” Cundiff said. “So having the media there, the fourth estate, to monitor and report what is going on to the public is critical.”
The only U.S. Supreme Court ruling on the subject was in 1890, when it upheld a total ban on media access to executions in a case out of Minnesota.
Despite the ban, in 1906 a reporter sneaked into a Minnesota jail to witness the hanging of William Williams. The execution was botched: The rope was too long, and Williams hit the floor after dropping through the gallows of the trap door. Jail deputies had to hoist him up again by the rope, holding him for 14 minutes until he strangled to death.
Minnesota abolished the death penalty five years later.
Another Supreme Court ruling in 1980 found that the First Amendment guaranteed the public — and the media — the right to attend murder trials: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” the court wrote.
In the years since, lower federal courts have frequently extended the right to attend criminal trials to other proceedings, including executions.
“To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the ‘initial procedures’ which are invasive, possibly painful and may give rise to serious complications. This information is best gathered first-hand or from the media, which serves as the public’s surrogate,” a 9th U.S. Circuit Court of Appeals panel wrote in 2002.
Still, public access to executions is eroding in the country, according to research from the DPIC. At least 16 states have passed death penalty secrecy laws since 2010, the group says, many of them focused on keeping details obscured about where lethal injection drugs are obtained.
Pressure from news organizations has sometimes prompted prison officials to change secrecy policies. That was the case in 2017, when the Arkansas Department of Correction announced that media witnesses would not be allowed pencils or paper to take notes; that was changed after outlets reported on the ban.
In Idaho, the AP, East Idaho News and The Idaho Statesman are suing for access to a part of the execution facility that is currently hidden from view. The news organizations want to be able to watch as lethal injection drugs are administered into IV lines.
Idaho prison officials have not yet officially responded to the lawsuit but maintain that the state has one of the most transparent execution processes in the nation.
Ahead of Corcoran’s scheduled execution, the heads of the Hoosier State Press Association, Indiana Broadcasters Association, Freedom of the Press Foundation and Indiana Chapter of the Society of Professional Journalists sent a letter to Gov. Eric Holcomb calling the secrecy a “miscarriage of justice.”
“The decision to carry out an execution is the gravest single act a state can partake in, and such an act warrants an impartial witness who bears the burden of reporting the process to the people of Indiana,” the organizations said.
