The last public execution in the United States took place in Owensboro, Kentucky on August 4, 1936. An estimated 15,000 to 20,000 people attended to view Rainey Bethea’s death by hanging. Nowadays, executions look very different. Gone are the crowds and public spectacle; now only a small number of people (including members of the victim’s family, attorneys, and media) bear witness through a sheet of glass to the final moments of the condemned person’s life.

With the changes in method, frequency, and publicity of executions comes increased secrecy surrounding capital punishment, particularly around lethal injections. A 2018 report by the Death Penalty Information Center examined execution procedures in the seventeen states that carried out lethal injections between 2011 and August of 2018. It found that nearly all concealed information about the source of the drugs, prevented witnesses from seeing parts of the execution, and prevented witnesses from hearing audio from the execution chamber. None of them permitted witnesses to know when each drug was administered during the execution. Lethal injection is the most common form of execution in the United States, so laws shrouding it in secrecy cover nearly all executions that take place.

Advocacy groups have long made first amendment challenges to secrecy in execution procedures. Citizens have rights to view government activities in certain circumstances. In Press-Enterprise Co. v. Superior Court of California, the Supreme Court adopted a two-part test for when government activities are presumptively open to the public: if they historically have been open and if openness is instrumentally valuable to the proceeding. If an activity meets these criteria, it is presumptively open to the public and any restriction of access to it must meet a strict scrutiny standard – that is, it must be narrowly tailored to meet a compelling government interest.

While it is clear that executions have historically been open to the public, the second prong of the Press-Enterprise test is slightly more open-ended: what value does openness in executions serve? At first blush, pushing for more publicity in executions might sound like a desire to return to the days of hangings as entertainment for raucous crowds. However, first amendment challenges are often brought by groups that favor abolishing capital punishment. These advocates have several goals in mind when challenging secrecy laws. They want people to know what happens in the execution chamber in the hopes that the grim details of state executions will turn public opinion against the death penalty. Furthermore, they want to know how often and why executions go wrong in order to make eighth amendment challenges against the death penalty as cruel and unusual punishment. Our current eighth amendment jurisprudence says that what counts as cruel and unusual can change; it’s based on “evolving standards.” If public opinion turns against the death penalty, or even just against lethal injections, what was once acceptable might become an eighth amendment violation.

A number of botched executions by lethal injection have occurred, confirming suspicions that this method of execution is not necessarily either quick or painless and demonstrating the need for oversight. This is particularly true because many drug manufacturers have stopped selling lethal injection drugs under pressure from death penalty activists, so some states have turned to untested drugs in order to continue executions. In 2014, James Woods took nearly two hours to die during a process that was supposed to take 10-20 minutes. A reporter counted him gasping 660 times throughout the procedure. That same year, Clayton Lockett was executed, also by lethal injection. His vein where the drugs were injected collapsed, and the drugs were absorbed by the surrounding tissue for 43 minutes until Lockett died of a massive heart attack. When prison officials realized Lockett was showing signs of discomfort, they closed the blinds, preventing witnesses from seeing the final minutes of his life. The ACLU filed a lawsuit on behalf of journalists present at the execution for a violation of their first amendment rights.

Challenges to secrecy laws have had mixed success. The ACLU’s lawsuit in the Clayton Lockett case was dismissed. Courts in several circuits have held that there is no first amendment right for media to film executions. However, some courts have found there is a first amendment right to view at least part of the execution process. A federal court in Pennsylvania granted a preliminary injunction and temporary restraining order in a case brought by the ACLU and two Pennsylvania newspapers, allowing journalists to see and hear executions; the parties then reached a settlement to keep executions open to witnesses and the media. In California First Amendment Coalition v. Woodford a California district court found that the first amendment prevents certain restrictions to viewing executions. The Ninth Circuit recently held that you have a first amendment right not only to see, but to hear, executions. Before this lawsuit, Arizona’s death penalty procedure had involved turning off the microphone in the execution chamber. However, in the same case the Ninth Circuit found, in keeping with the Sixth and Eighth Circuits, that there is no first amendment right to information about the lethal injection drugs.

News outlets in Virginia are currently bringing a similar suit, claiming that the state’s execution procedures violate the first amendment because certain activities (like the insertion of the IV line) are done behind a curtain. Increased transparency in the capital punishment process is crucial to raising public awareness. These kinds of lawsuits may be instrumental in bringing about the end of the death penalty, not only by uncovering instances where executions go wrong, but also by making the public aware of the routine brutality of capital punishment. If public sentiment about the death penalty changes, a constitutional challenge to it may become viable and the death penalty could eventually be abolished.