SAN FRANCISCO — In 1936, more than 20,000 people crowded around a gallows in Owensboro, Ky., to watch one of the last public executions in the United States. Leaning out windows and perched atop utility poles, they saw a condemned man dangle from a hangman's noose until dead.
Since then, executions have been moved behind prison walls, viewed only by select officials, citizen witnesses and the press. But now, a bid to present the somber proceedings to perhaps millions of viewers is being made by a San Francisco public broadcasting station in a federal court suit seeking to bring a television camera to the gas chamber for the first time.
In response, state authorities are not only opposing cameras at executions, but also have taken the unprecedented step of barring the news media entirely. As a result, the case has expanded into a broad constitutional test of the media's right to attend an execution and could end up in the Supreme Court. U.S. District Judge Robert H. Schnacke may rule on the issue as early as Friday.
An attorney for station KQED, William Bennett Turner of San Francisco, contends that the television camera will serve the public interest by providing a neutral, more accurate and complete account of the ultimate criminal punishment.
"KQED does not have an agenda on the death penalty," Turner said. "We do have an interest in covering the death penalty process from beginning to end. . . . Should executions be held in secret in California, just as they are in totalitarian countries?"
State Deputy Atty. Gen. Karl S. Mayer counters that televised executions could jeopardize prison security, inflaming inmates watching from their cells and placing prison staff members at risk. There is no First Amendment right to attend an execution, even without a camera, he says. Under current state law, the warden is required only to admit 12 reputable people to serve as official witnesses.
"There's nothing secret about an execution," said Mayer, appearing with Turner at a Bar Assn. of San Francisco forum last week. "We don't need pictures of a man inhaling gas to know what's happening."
The station may face an uphill battle, in the view of some legal experts. Robert C. Lind Jr., a communications law specialist at Southwestern University School of Law, notes that although the U.S. Supreme Court has upheld news media access to the courtroom, it has done so on the grounds that those proceedings are generally open to the public. That is not the case with executions.
"In a courtroom situation, the hope is that the public and press will be able to scrutinize the judicial system and ensure the defendant has a fair trial," Lind said. "But I don't see the same interest at issue in this case, in making sure a sentence is carried out in a particular manner."
However, UC Berkeley law professor Robert C. Post believes that there is a "very strong case" supporting a constitutional right of access to executions. Although the public is not allowed, the citizen witnesses and press effectively serve in its place, he contends. "They stand in for the public, seeing that its justice is carried out," he said.
Post also sees no justification for excluding cameras--particularly if it is done merely on grounds of taste. "It should not be up to the government to decide something is not fit for decent people to see," he said.
The case also has stirred controversy among supporters and opponents of capital punishment, mindful that with 300 inmates on Death Row, California may soon have its first execution since 1967. The case of Robert Alton Harris, the condemned killer regarded as closest to the gas chamber, now is pending before the U.S. 9th Circuit Court of Appeals.
Death Penalty Focus of California, a citizens group opposing capital punishment, says that if there must be executions, they should be televised.
"It's our hope that by seeing an execution in the intimacy of their own living rooms, people will be forced to confront the question," said Executive Director Pat Clark. "We firmly believe most people will be outraged and repulsed by this barbaric practice."
A coalition of victims' rights groups disagrees--and is urging that viewers withdraw their financial support of the station in protest. At the least, the coalition says, KQED ought to also show a filmed re-creation of the crime.
"This is merely a plot to elicit sympathy for murderers and to try to get a ban on the death penalty," said Sharon L. Sellitto, secretary of Justice for Murder Victims. "I think it's a terrible mistake and I don't think it would deter murder or change people's minds. . . . And with the pirating (of videotape), who knows what would be done with it? It could become comparable to becoming producers of 'snuff films.' "