Why Is A Photographer At
an Execution A Criminal?
This essay originally
appeared in The Critical Criminologist v 11 #3 (August 2001).
Copyright 2001 Paul Leighton. Permission is
freely given to distribute paper copies at or below cost. All other rights reserved.
Timothy McVeigh has been
billed as the worst US terrorist, and under our law it’s illegal to document
his execution through photography, even though several hundred surviving
victims saw the closed circuit broadcast. A federal court denied an internet
entertainment group permission to webcast the execution, even though they are
willing to use the feed from the Bureau of Prisons (BOP) camera and require a
credit card to prohibit access by minors.
The reason for denying
the request is related to ‘security’ and ‘privacy’ concerns, both of
which deserve scrutiny because of their history in being used to cover up
embarrassing or awkward information. So it’s important to examine why a
photographic witness to a state-sponsored execution is a criminal.
The district court
opinion in Entertainment Network v.
Lappin is a hodgepodge of cases where the media in general, and television
in particular, have been denied access to prison and military events.
Ultimately, Judge Tinder deferred to the prison administrators, who argued
that the regulation against recording an execution served “peonological
interests”, including “(i) the prevention of the sensationalizing of
executions, (ii) the preservation of the solemnity of executions, (iii) the
maintenance of security and good
order in the Federal Prison System, and (iv) protection of the privacy rights
of a condemned individual, the victims, their families and those who
participate in carrying out the execution.”
The Judge then rather
uncritically accepts the reasoning in the warden’s affidavit, whose five
points are listed below with some commentary.
“First,
that to maintain security and good order in a prison setting, it is
important that inmates understand and believe that they will be treated like
human beings and not dehumanized.”
I agree – and want to
point out that this source isn’t a soft-on-crime liberal, but the Bureau of
Prisons. Why haven’t they made this point more forcefully during the last
three decades of ‘tough on crime’ whose point was frequently to degrade
and dehumanize inmates (including chain gangs and boot camps)? The BOP has
gone ahead with SuperMax facilities that arguably dehumanize and have raised
worldwide concern about human rights abuses.
“Second,
that the governments interests in not sensationalizing and preserving the
solemnity of executions is based upon the danger that if prison inmates were
to see the execution on television or receive word of the televised event
through other means, the inmates may well see the execution as ‘sport’ which dehumanizes
them.”
While the BOP has a
great deal of power to define conditions of incarceration and protocols of
execution, this rationale takes a dangerous step to where they claim control
of news and images because it might undermine perceptions
of justice (or reinforce an accurate, but negative, understanding about the
administration of ‘justice’). The BOP is concerned that if inmates see
executions as sport, they will riot (see next item), but this problematic
connection should not be used to expand ‘legitimate peonological interest’
to include whatever ‘solemnity’ the BOP feels their execution deserves.
Further, men living
under sentence of death develop some intense feelings about the justice of
executions, and it is difficult to see how a televised execution would make
them more cynical. If the death penalty is seen as sport, it has less to do
with a televised clip than: George Bush grinning through the execution of
Carla Fay Tucker after the Pope asked for clemency; calls for executing
juveniles and mentally ill people; and tailgate parties to celebrate others
being ‘fried’; continued errors in imposing death
sentences; an
egregiously poor system for providing effective defense counsel that we refuse
to remedy; and a long history of racial and class discrimination.
How can televising an
execution make inmates feel worse about the death penalty than hearing Supreme
Court Justice Scalia say, “Mere factual innocence is no reason not to carry
out a death sentence properly reached"? (And he’s the one who is being
discussed as the next Chief Justice and a model for Bush administration
judicial appointees.)
“Third,
that when inmates feel that they are dehumanized or devalued as persons,
agitation amongst the inmates is frequently fomented, which in turn can lead
to prison disturbances.”
It’s good the BOP sees
the connection between dehumanization and riots, and they should send a memo
to the Immigration and Naturalization Service about it. But let’s see them
remedy dehumanizing practices at Super Max facilities and the other prisons
condemned by Human Rights groups like Amnesty International.
So the argument is that
we’re can’t show an execution because the 20 inmates on the Federal death
row with McVeigh will riot? Even if we appreciate that death row is a
difficult and tense place to live and work, it is hard to see this reasoning
as compelling. It’s also hard to see how the concern about disturbances
would lead to banning the photographer rather than pursuing reforms of death
row that would have the same effect. This reasoning certainly fails the test
of having a “rational connection between the prison regulation and the
legitimate, neutral governmental interest” and an “absence of ready
alternatives” (quoted in Entertainment
Network v. Lappin).
Lastly, some condemned
men support the death penalty (just for other people). Many would agree with
widespread sentiment that McVeigh deserves to die and would not necessarily
see the administration of justice as defiled because of McVeigh’s execution.
“Fourth,
that a broadcast would violate the privacy of condemned persons, and would
also ‘strip away’ the privacy and dignity of victims and their
families.”
McVeigh has waived his
privacy right and wants the execution televised, somewhat ironically, because
he favors scrutiny of government actions. Before being sentenced to death,
McVeigh uttered only four sentences, including a quote from former Supreme
Court Justice Louis D. Brandeis: "Our government is the potent, the
omnipresent teacher. For good or ill, it teaches the whole people by its
example."
If the camera is just
kept on McVeigh and the victims are not shown, their privacy right is not
violated. Their dignity isn’t affected by me having access to the same snuff
film they’re watching.
“Fifth,
that a public broadcast of the execution would violate the privacy and
seriously put at risk the safety of those charged with implementing the
sentence of death.”
The BOP can have control
of the camera, so they can make sure it does not disclose identities by
choosing angles or focus; we have the technology to digitally mask a face,
which is a “ready alternative” to the greater restriction of denying the
U.S. public information about current public policy.
I’m not in favor of
televising McVeigh’s execution; I just don’t like sloppy reasoning that
restricts access to information about government activities. Further, while
people worried that televising McVeigh’s execution would ‘give him a
forum,’ the sad fact is that the restricted audience played into his beliefs
that government is corrupt and his execution was not legitimate. The quote he
took from Brandeis about government being the teacher involved government
wiretaps, which prompted the Justice to write about the importance of the
"right of personal security, personal liberty and private property";
in this opinion he penned his classic phrase about how the Bill of Rights
conferred "the right to be let alone." To McVeigh, the government's
laying siege to the compound and burning it to the ground violated cherished
personal rights and also served as the example for him to level the Murrah
federal building.
McVeigh's lawyer says
the convicted bomber is "in favor of public scrutiny of government
action, including his execution." McVeigh thought his execution would be
an example of government overstepping its bounds, which Brandeis said
"breeds contempt for the law; it invites every man to become a law unto
himself; it invites anarchy-[and] would bring terrible retribution" (See Olmstead v U.S. 277 US
438, 1928).
If executing this
terrorist is so just – the very reason the US supposedly needs a death
penalty – then why the secrecy? Why the fear that it will be seen as
dehumanizing ‘sport’? Show it to The People, who – according to many
speeches -- collectively were victimized because McVeigh’s act was a
‘terrorist’ bombing. Further, European countries have abolished the death
penalty, even for genocide, and see Bush as the ‘executioner extrodinaire.’
Why not use McVeigh’s execution to show the world that US executions don’t
violate human rights?
French philosopher Camus
wrote that "one must kill publicly or confess that one does not feel
authorized to kill". If we cannot televise McVeigh’s execution to the
world and deal with all the implications (nationally and globally), then
McVeigh should be the last execution in this country.
Or, we can take the easy
way out and make the photographer a criminal.
Afterword: California
First Amendment Coalition v Woodford is not about televising
executions but deals with restrictions on what witnesses can view. It allowed
the press and witnesses to see the condemned from the moment he enters the
execution chamber and thus expands some of the 'right to watch.' (9th Circuit
Court of Appeals, 2002. Adobe/.pdf 30 pages).
See also In the Face of a CNN Lawsuit, FEMA Agrees To Allow Media Coverage Of Katrina's Dead:
If the Case Had Proceeded, Who Would Have Won, and Why? (Finlaw.com
column). The author notes: "this is the kind of speech that the First Amendment was written to protect. There's no denying that Katrina has been a huge political bombshell. And the Supreme Court has many times said that speech on political issues is at the very core of the First Amendment. Freedom of the press embodies that principle by protecting the media's ability to expose the secrets of government and inform the American people."
And "As I discussed in a prior column, one can argue, in some cases, about what kind of interests are legitimate, and public. But here, surely the interest in showing the toll of Hurricane Katrina is both legitimate, and one that belongs to the public: a public trying to understand the magnitude and causes of the loss and damage, and to assess who is responsible."
Finally, in a section entitled ""Offended Sensibilities" Claims Are Anathema to the First Amendment,"
the author notes: "it is right to uphold the principle that what all can see and read, cannot be limited by the way some group - even a very sympathetic group, like victims' relatives - will react, emotionally, to the same photograph or text."
last
edited: 17 Sep 2005
