Very early on Wednesday morning, after a 15-year hiatus, Indiana got back into the execution business. The lethal injection of Joseph Corcoran happened in near-secret, highlighting a worrying trend in the state that seems designed to keep the public in the dark about one of the criminal justice system’s most brutal practices.
Corcoran was convicted in 1997 of murdering four people, including his brother and his sister’s fiancé, and exhausted all his federal appeals in 2016. The following year, Indiana changed its laws to clamp down on what the public could know about the death penalty.
The Hoosier state took the radical step of deciding not to give media witnesses the right to be present at any execution.
Since then, the state prohibits the revelation of information “reasonably calculated to lead to the identity” of a “pharmacist, a pharmacy, a wholesale drug distributor, or an outsourcing facility that provides a lethal substance to the department of correction” or “an officer, an employee, or a contractor” of those persons.”
Indiana went so far as to say that the law applied “retroactively to any request for information, discovery request, or proceeding, no matter when made or initiated.” Beyond that, the Hoosier state took the radical step of deciding not to give media witnesses the right to be present at any execution. Wyoming is the only other death penalty state with a similar policy.
As the Death Penalty Information Center observes, “Recent secrecy laws hide critical details like the source of execution drugs and the identities of execution team members from the public — sometimes even from death-sentenced prisoners and their lawyers, who must obtain a court order for these details.”
Such secrecy is incompatible with the public’s right to know, which underlies the First Amendment’s press freedom guarantee. Unfortunately, the United States Supreme Court disagrees.
In 1890, the court upheld Minnesota’s then-existing ban on media access to executions. Justice John Marshall noted that “whether a convict, sentenced to death, shall be executed before or after sunrise, within or without the walls of the jail, or within or outside of some other enclosure … are regulations that do not affect his substantial rights.”
The same observation, he explained, applied to potential witnesses. “These are regulations which the legislature, in its wisdom, and for the public good, could legally prescribe.”
Other courts have taken a different view, including the Ninth Circuit. In a 2002 decision about lethal injection, the judges argued that “independent public scrutiny” was an essential part of the process. Public and media witnesses need to know how lethal injections are administered in order to evaluate whether they can be “fairly and humanely administered … Americans simply cannot rely on the state to report accurately such crucial details as whether the injections are effective, or complicated or painful.”
The appellate court unanimously noted that “the public has a First Amendment right to view executions,” including the inmate’s demeanor and the behavior of the guards. “Independent public scrutiny made possible by the public and media witnesses to an execution,” it explained, “plays a significant role in the proper functioning of capital punishment. An informed public debate is critical in determining whether execution by lethal injection comports with the evolving standards of decency which mark the progress of a maturing society.”
The role of the media is especially crucial when things don’t go as planned. And there are plenty of examples of executions that have been botched, with disastrous consequences. An oft-cited example is the 1906 hanging execution of William Williams in Minnesota. Despite the state’s ban on media, a reporter snuck in and witnessed Williams hit the floor when the trap door was opened due to an incorrectly measured rope. Williams didn’t die for another 14 minutes as he was slowly strangled. Minnesota never executed another prisoner. This brings us back to Corcoran. In his case, no reporter had to literally sneak in to see him die. Instead, Corcoran got around the statutory exclusion of the media by inviting Casey Smith, a reporter from The Indiana Capital Chronicle, to be one of his witnesses. After the execution, Smith said: “I spent less than 20 minutes as a direct witness to Indiana death row inmate Joseph Corcoran’s execution, but from what I was allowed to see, he appeared quiet and mostly still in the moments leading up to his death.” Whether an execution goes smoothly or is botched, it is in the interests of literally everyone that the media is able to observe. However, it would be even better if journalists did not have to resort to subterfuge or loopholes — like an invitation from the condemned — to do so. Robin Maher, executive director of the Death Penalty Information Center, gets it right when she says, “Media ensures government accountability and transparency in an otherwise closed and secretive process.”
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
