The secrecy imposed by the state of Oklahoma over the botched execution of Clayton Lockett is being challenged in a federal court as a violation of first amendment press freedoms.



In a lawsuit lodged with the US district court for the western district of Oklahoma on Monday, the American Civil Liberties Union (ACLU) argues the state acted unconstitutionally by drawing a screen between the death chamber and the observation room before he was declared dead.

The ACLU is joined as plaintiffs in the lawsuit by the Guardian, the Oklahoma Observer and journalist Katie Fretland, who was one of the reporters in the observation room for the Lockett execution and filed for both outlets. The lawsuit calls on the court to ban Oklahoma from denying reporters “meaningful, uninterrupted and unedited access to the entire execution procedure”.

“The state of Oklahoma violated the first amendment, which guarantees the right of the press to witness executions so the public can be informed about the government’s actions and hold it accountable. The death penalty represents the most powerful exercise of government authority – the need for public oversight is as critical at the execution stage as it is during trial,” said the ACLU’s staff attorney Lee Rowland.

The lawsuit argues that observers should have been granted an unimpeded view of the process until Lockett was declared dead, or until the execution was called off and the state began the process of resuscitating Lockett.

It is the latest in a raft of legal challenges that have been brought against the spread of secrecy across the death penalty states. The Guardian and other news organisations have brought a lawsuit in Missouri that seeks to force the state to disclose the source of its lethal injection drugs, arguing that the public’s first amendment rights have similarly been violated.

Lockett’s execution on 29 April was one of a series of recent botched procedures that have provoked renewed debate about the moral and legal justification of the death penalty in America. It took the state 43 minutes to declare the convicted murderer and rapist dead, during which he was observed writhing and groaning on the gurney.

The director of the Oklahoma department of corrections, Robert Patton, officially called off the execution after 33 minutes because it was not working, but 10 minutes after that Lockett was pronounced dead. In the aftermath, the execution was widely condemned around the world and across the US where President Obama called it “deeply disturbing”.

For 27 of the 43 minutes of the execution, reporters present in the death chamber were prevented from witnessing what was happening by a blind that had been lowered across the window that separated the gurney from the viewing area. A state official said at the time that the curtain would be lowered only “temporarily” but it remained down throughout the rest of the proceeding until Lockett was declared dead.

In her report, Fretland, recorded that “in a gesture that seemed to echo Oklahoma’s fierce commitment to secrecy in the way it carries out lethal injections, the curtains were drawn over the execution chamber, obscuring the gruesome spectacle from public view.”

The ACLU and its co-plaintiffs want to see legal injunctions in place that would prevent Oklahoma filtering the news about its execution procedures by the time the next scheduled lethal injection takes place on 13 November. The prisoner set to die on that date is Charles Warner, who was sentenced to death in 2003 for raping and murdering a baby.

Warner had been scheduled to die on the same night as Lockett, but his death was put on hold as the disastrous Lockett events unfolded.

Were the ACLU lawsuit to succeed, Oklahoma would be obliged to allow reporters to witness the entire execution process beginning with the entry of the condemned prisoner into the death chamber and including the insertion of intravenous lines into his veins. Officials would also be prohibited from preventing witnesses from seeing the prisoner at any stage up to the moment when the prisoner is declared dead or the execution stopped.