Veil of secrecy: public executions, limitations on reporting capital punishment, and the content-based nature of private execution laws.

• Author: Levi, Nicholas

1. INTRODUCTION

   Few issues in America spark more robust debate and disagreement than capital punishment. The theoretical foundations of the penal system in this country (whether the role of the state towards criminals should be predominantly one of deterrence, rehabilitation, or retribution) stand at the forefront of the debate. (1) The finality of the penalty provides the most illustrative and arguably the most tragic examples of the insufficiencies of the American criminal process. (2) The death penalty, as "the ultimate act of state," (3) provides a forum for very refined moral arguments centering on the role of the state over those whom it governs. This list is certainly not meant to be exhaustive, but merely indicative of the several issues and arguments that often follow debates on capital punishment through the legislatures, courts, and public forums of this country. (4)

   One issue that is often overlooked in the capital punishment debate is the policy, adopted in some form by every criminal jurisdiction with the death penalty, to shield the public from the specifics of the application, administration, and resolution of the death sentence. Many Americans place the fundamental theoretical concepts of the First Amendment at the very cornerstone of the American democratic system. The First Amendment secures "the paramount public interest in a free flow of information to the people concerning public officials." (5) It "assures the maintenance of our political system and an open society." (6) It is in stark contrast to these principles that private execution laws in this country prohibit the public from viewing, and in some cases even prohibit the press from reporting, on the administration of capital punishment.

   This Note provides a brief historical and analytical account of capital punishment in this country. This discussion will highlight the legislation, administrative policy, and penal roles that have historically restricted access to the execution chamber for the express purpose of preventing the dissemination of information regarding capital punishment to the American voting public. Ultimately, this Note will argue that this historical backdrop forces courts analyzing these laws to characterize these regulations as content-based distinctions on free speech, rather than to grant the broad deference these regulations are typically given in the courts' right-of-access jurisprudence.

   Part II of this Note will provide a brief background of the methods of capital punishment at the time of the country's founding through the early parts of the twentieth century. It will highlight trends in attitudes toward capital punishment and discuss major attempts to humanize or to abolish capital punishment. Part III will address the emergence of private execution laws and argue that these laws arose in direct response to anti-death penalty movements throughout the nineteenth century. Part IV will analyze the Supreme Court's freedom of the press jurisprudence, specifically focusing on the "right of access" to government proceedings. This is the context upon which challenges to private execution laws have historically been brought. Part V will address the most recent manifestation of this movement: attempts to broadcast executions to the general public. Part VI will argue that these challenges have ultimately failed because of their characterization as "access" cases. The historical tradition of shielding facts about executions from the public necessitates that the courts evaluate these cases under the Supreme Court's holdings involving content-based restrictions on speech.

2. THE HISTORICAL TRADITION OF CAPITAL PUNISHMENT IN THE UNITED STATES

   1. The Colonial Era

      During the early Colonial period, all thirteen American colonies imposed capital punishment for at least some crimes. (7) The Colonial punishment scheme was modeled heavily after the system in England; however, the colonies imposed capital sentences for fewer crimes, (8) and the officials administering the trials were generally more hesitant to impose the death sentence. (9) New York's capital scheme was fairly representative of the colonies during the seventeenth century; the state imposed capital sentences for eleven crimes. (10) Pennsylvania and West Jersey were the most lenient of the colonies, authorizing capital sentences only for treason or murder. (11) Generally, the Southern states' capital laws imposed the death sentence for a wide variety of offenses, especially for slaves. (12)

      Although harsh by today's standards, the colonies' capital laws were much more lenient than those of England or of continental Europe. (13) Beginning around the turn of the eighteenth century, the colonies began to enact stricter capital punishment laws. (14) This trend is primarily attributed to three factors: (1) population growth necessitated stricter criminal laws; (2) the absence of a prison system made capital punishment an attractive and economical alternative; and (3) the English Crown pressured Colonial governments for stricter criminal laws, especially in regards to capital sentences. (15) By the Revolution, all thirteen American colonies prescribed capital sentences, and all but Rhode Island imposed it for at least ten separate offenses. (16)

      Prior to the American Revolution, the colonies applied the death sentence in open forums that invited and encouraged public audiences, and generally used hanging as the method. (17) Philip English Mackey described a common spectacle surrounding an eighteenth-century execution:

      Felons were either hanged, often so clumsily that they died in slow agony, or burned at the stake (a method usually reserved for blacks and Indians). In either event, the execution took place in public, with rowdy onlookers jockeying for the best view. In some cases, the publicity of the punishment did not end with the criminal's death. The authorities sometimes ordered the corpse exhibited in a public place--in rare instances for periods exceeding a year--for the edification of potential wrongdoers. (18) B. Initial Reforms: 1776-1800

      The American Revolution did little, if anything, to change capital punishment laws in this country. (19) The initial spark for reevaluation came not from war, but from philosophy. In 1763, the Italian jurist Cesare Beccaria published his treatise Del delitti e delle pene (On Crimes and Punishments). (20) Beccaria advocated for punishments that were proportional to the crime. (21) Furthermore, he argued that the barbaric nature of the death sentence promoted crime, rather than serving as a deterrent. (22) The book was read extensively in Europe and the first English translation was available in New York in 1773. (23) Although initially, the work was not widely received in this country, it did help spark the first political debate over the use of capital punishment in the years following the Revolution. (24)

      Philadelphian Dr. Benjamin Rush was the first outspoken opponent of capital punishment in this country. (25) He published his treatise, An Enquiry into the Effects of Public Punishments Upon Criminals and Upon Society, in 1787. (26) Rush argued that capital punishment violated both reason and divine law, irrespective of the criminal offense. (27) Due in no small part to Rush, the initial battleground over capital punishment was the Pennsylvania legislative chamber. In 1794, the state abolished capital punishment for all crimes except first-degree murder. (28) New York followed with a major reform to its capital laws in 1796. (29) Advocated by leaders such as Thomas Eddy, Philip Schuyler, and Ambrose Spencer, New York abolished capital sentences for all crimes except treason and murder. (30) New York, however, unlike Pennsylvania, did not separate murder into degrees. (31)

   3. The First Abolitionist Movement: 1800-1860

      It is difficult to separate the movement against capital punishment in the early nineteenth century from the broader Western Enlightenment movement for prison reform. (32) European philosophers such as Beccaria, John Howard, and Jeremy Bentham were very successful in arguing for a system of penal justice that emphasized reform. (33) The most important practical result of this movement was the development of penitentiaries. These new prisons were meant to be schools of reform that offered prisoners the opportunity to develop their character and rejoin society as "reformed" citizens. (34) "During the nineteenth century, the goals of abolitionists were intertwined with those of prison reformers in part because they tended to share a common view of humanity, but also because effective reform of prisoners provided for both groups an attractive alternative to execution." (35)

      Although abolitionist thought grew out of a much larger movement for penal reform, it remained a distinct and separate argument in this country. While penal reform was driven by Enlightenment thinkers such as Bentham and Beccaria, the abolitionist movement in this country was fueled by "the tides of religious revival, social reform, and romanticism." (36) Even as complaints against broad prison reform grew in number, (37) the abolitionist movement continued to thrive, reaching its peak during the 1830s and 1840s. (38)

      During this period, the debate over capital punishment raged across the American press. (39) "Hundreds of books and pamphlets attacking the death penalty" were published during the 1840s. (40) William Cullen Bryan of the New York Post and Horace Greeley of the New York Tribune were perhaps the most influential abolitionist speakers. (41) Numerous other newspapers and periodicals devoted extensive space to the debate, (42) while two periodicals of the period were devoted exclusively to prison reform and abolishing the death penalty. (43)

      In addition to the formal press, there were numerous private "anti-gallows" organizations formed during the 1840s. (44) By 1845, the New York State Society, perhaps the most influential...