Perspectives: Death penalty focus recalls law, lore here.


Byline: Marshall H. Tanick

"The state continues to kill its victims

to appease the mob's

emotions of hate and revenge"

Attorney Clarence Darrow, "The Futilityof the Death Penalty" (1928)

Capital punishment is attracting a great deal of attention these days, ranging from the courtrooms to the White House to the newsrooms.

The focus stems from several sources, including a pair of unusual constitutional law cases along the two coasts, West and East; rantings by President Trump from the Oval Office; and a newspaper's glance at the way a Supreme Court justice addresses death penalty cases.

The president's remarks, uttered in connection with the pending impeachment proceedings against him, included claims of "treason" and "spies" by Democratic leadership in the House of Representatives impeachment inquiry, whistleblower and their sources, charges that could if brought, trigger the death penalty. An article in the New York Times takes a meticulous process used by Supreme Court Justice Sotomayor in death penalty cases. (A. Liptak "For Sotomayor No Death Penalty Case Is Routine" New York Times, Oct. 1, 2019.)

These developments, especially the two lawsuits, have much in common with this state. The two lawsuits turn on First Amendment issues relating to the imposition of capital punishment arising out of flawed executions, a pair of features that underlie the law and lore of capital punishment in this state.

Couple of cases

The couple of cases, both federal lawsuits, may have the most impact. The pair of proceedings, contrary to some media reports, do not involve full public purview of all executions. Instead, they deal with particular protocols available to those who are allowed, by statute or regulations, to actually view the executions, such as law enforcement personnel, family members of victims and the like. Both push the envelope on accessibility to the execution process.

In mid-September, the California-based 9th U.S. Circuit Court of Appeals ruled in an Arizona case that microphones in the death chamber must be turned on during the execution process to allow the permitted witnesses to hear the death throes of the condemned individual in First Amendment Coalition of Arizona v. Ryan, 2019 WL 4419676 (9th Cir. Sept. 17, 2019). The court reasoned that the "historical tradition of public access [to government proceedings] includes the ability to hear the sounds of executions."

That case was followed less than a week later by the filing of a lawsuit by a media coalition in federal court across the country, in Virginia, seeking to prohibit execution officials from placing curtains that block witnesses from seeing "crucial steps" in carrying...

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