After officials injected Joseph Wood, a death row inmate in Arizona, with lethal drugs, he reportedly rose up and spent nearly two hours struggling to breathe before at last succumbing to his death.1 The death of Wood, who “appeared to be in agony” throughout the process,2 intensified growing scrutiny around state-administered executions.3 Recently, in First Amendment Coalition of Arizona, Inc. v. Ryan,4 a Ninth Circuit panel held that the public has the right under the First Amendment “to hear the sounds of executions in their entirety.”5 The panel correctly recognized the right of the public to observe — visually and aurally — government proceedings of such import and finality. Yet in evaluating Arizona’s procedures, the panel had no choice but to apply an overly deferential standard of review. Though the Ninth Circuit declined to rehear Ryan en banc, cases like Ryan present an opportunity for the court to override its panel precedent and adopt a more appropriate standard of review that accounts for the right of the public implicated by execution-access regulations.
Wood’s execution followed a string of botched executions in Arizona.6 Under the challenged state procedures, witnesses sat in a room adjacent to the execution room and could watch and hear initial stages of the execution through monitors and speakers.7 After inserting intravenous lines into the inmate’s body, officials would open the curtains of the witness room and turn off the microphone, enabling witnesses to watch, but not hear, the rest of the execution.8 Before Wood’s execution, he and five other death row inmates had challenged the state’s procedures in a civil rights action.9 After his execution, the remaining plaintiffs, joined by two additional inmates and a nonprofit group dedicated to free speech and government accountability, filed an amended complaint.10 Among other claims,11 the plaintiffs argued Arizona’s procedures restricted the public’s right of access to government proceedings under the First Amendment by preventing the public from hearing executions in their entirety and failing to provide information such as the source of the lethal drugs and the qualifications of the execution officials.12 The resulting lack of transparency, the plaintiffs argued, also violated their right of access to the courts under the First Amendment, which grants inmates the opportunity to challenge their confinement in part through adequate access to information.13
The district court dismissed the plaintiffs’ First Amendment claims.14 The district court first recognized a Ninth Circuit panel’s holding in California First Amendment Coalition v. Woodford15 that “the press and the public have a First Amendment right to view execution proceedings from the moment the condemned enters the execution chamber.”16 Since Arizona’s procedures allowed public viewing17 and the plaintiffs did not allege that “the press and general public have historically had greater . . . aural access to executions,” the district court reasoned, plaintiffs could not claim a right to hear executions on the basis of Woodford.18 Similarly, “[t]he public’s First Amendment right to view court proceedings does not . . . reach behind an execution to learn everything about the execution,” such as drug origins or officials’ qualifications.19 The district court also dismissed the plaintiffs’ claim that their right of access to the courts was violated, finding the right “does not include a right to discover causes of action or to litigate effectively.”20
A Ninth Circuit panel reversed in part, concluding that the public has a right to hear executions in their entirety.21 Writing for the panel, Judge Watford22 began by reviewing various missteps in Arizona’s executions.23 Ultimately, he found not only that “the First Amendment right of access to governmental proceedings encompasses a right to hear the sounds of executions,” but also that Arizona’s procedures “impermissibly burden that right.”24
Judge Watford performed the same analysis conducted by the Woodford panel.25 First, he held that the plaintiffs had plausibly alleged a First Amendment right to hear executions26 because “executions have historically been open to . . . the general public,”27 and auditory access could “play a significant role in the proper functioning of capital punishment” by helping the public understand whether Arizona carries out executions “in a humane and lawful manner.”28
Second, he addressed the question of whether Arizona’s restrictions “impermissibly burdened” the right to hear executions.29 In doing so, Judge Watford pronounced that a “deferential standard of review applies” since the regulation affects “executions that will take place inside a prison,”30 and officials should retain “broad discretion to carry out the complex task of prison administration.”31 This standard — from the Supreme Court case Turner v. Safley32 — uses a four-factor test33 to evaluate whether a regulation is “reasonably related to legitimate penological objectives, or whether it represent[s] an exaggerated response to those concerns.”34 Upon applying the standard, Judge Watford held that the plaintiffs plausibly alleged that Arizona “unconstitutionally restricted the ability of witnesses to hear the sounds of executions.”35
Judge Watford affirmed the dismissal of the remaining claims. Citing precedent and the “default rule” that the public does not have a right of access to all government information,36 he held that the First Amendment right of access to government proceedings does not entitle the public to information on execution drugs or officials’ qualifications.37 Likewise, he held that the First Amendment right of access to the courts does not include the right to “discover grievances[] and to litigate effectively” and thus did not apply to the case at hand.38
Judge Berzon dissented from one part of the majority’s holding.39 She argued that because the plaintiffs plausibly alleged Arizona “concealed information in a deliberate effort to limit their ability to litigate the conditions” of their executions, the plaintiffs’ claim that their right of access to the courts had been violated should stand.40
Ultimately, the Ryan panel correctly upheld the public’s right to hear executions in their entirety. However, precedent bound the panel to evaluate Arizona’s procedures under the Supreme Court’s Turner standard, a deferential standard of review for prison regulations. The Ninth Circuit, sitting en banc, should revisit its use of this deferential standard in challenges to execution-access procedures that primarily implicate a right of the public. After all, neither the articulation nor use of Turner by the Supreme Court requires its application in such cases. Moreover, the public nature of the right asserted in Ryan demands higher scrutiny of restrictions on the right, and a less deferential standard would not unduly burden inmate rights or hinder prison administration.
Tracing the origin of the Turner standard and its application to executions in the Ninth Circuit provides helpful background for the Ryan decision. In Turner, decided in 1987, the Court acknowledged the need to balance “valid constitutional claims of prison inmates” with “the recognition that ‘courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.’”41 The Court declared that even “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”42 Eleven years later, in California First Amendment Coalition v. Calderon,43 a Ninth Circuit panel applied this reasoning to review a restriction on public viewing of executions.44 Then, in 2002, the Ninth Circuit panel in Woodford applied Turner to the same restriction on public viewing.45 The Woodford panel noted “[t]he Supreme Court has never applied Turner in a case such as this one, where the regulation promulgated by prison officials is centrally concerned with restricting the rights of outsiders.”46 Still, because Calderon had established Ninth Circuit precedent in applying Turner to the execution-access regulation, the Woodford panel determined that Turner controlled.47 More than fifteen years later, similarly bound by precedent, the Ryan panel followed suit.48
Yet Supreme Court precedent does not necessarily mandate application of Turner to regulations like those in Ryan, which primarily implicate a right of the public. Thus, Ryan offered an opportunity for the Ninth Circuit, sitting en banc, to shift away from the Turner standard. Indeed, the Ryan panel characterized Arizona’s auditory access restriction as one that limits the press and public, not inmates.49 Meanwhile, in Turner, the Court specified that the standard applies when a regulation “impinges on inmates’ constitutional rights,”50 differentiating its reasoning from that of a prior case involving a regulation that affected the rights of both inmates and the public.51 While the Court later held that “any attempt to forge separate standards for cases implicating the rights of outsiders is out of step with the intervening decisions” that provided a basis for Turner,52 the decisions cited by the Court involved direct challenges to the rights of both the public and inmates.53 As the Woodford panel itself pointed out, the Court has never applied Turner to a regulation that primarily infringes on the rights of nonprisoners.54
Indeed, the public nature of the right asserted in Ryan calls for a higher level of scrutiny of restrictions on that right. A heightened standard of review would better account for the values underlying the public’s right of access to government proceedings, a right that serves to “increase public confidence in the administration of justice, create an informed public, and strengthen and secure our system of government.”55 Restrictions on the right of access carry higher stakes in the context of capital punishment, the constitutionality of which, the Court has stated, depends on “the evolving standards of decency that mark the progress of a maturing society.”56 In fact, Arizona requires at least twelve “reputable citizens” to serve as execution witnesses,57 suggesting an interest in preserving public oversight of executions.58 And as Judge Watford noted in Ryan, “more comprehensive coverage” of executions requires both visual and auditory access,59 which carries unique emotional potency.60 The botched executions in Arizona and other states61 further underscore the importance of execution access — an essential ingredient for public awareness and reform62 — and, by extension, the need for a less deferential standard to review these claims. Selection of an alternative standard falls outside the scope of this comment, though the standard for right-of-access claims may serve as a starting point.63
Though Ryan upheld the public’s right to hear executions even under Turner, a court’s selection of its standard of review presents more than merely a semantic question.64 A deferential standard such as Turner grants significant discretion to prison administrators, creating room for abuse.65 In fact, the Ryan panel’s ruling marks an aberration from typical applications of Turner, which has proved extremely deferential in practice.66 A heightened standard would offer more reliable protection of the rights of the public implicated in execution-access challenges.
Moreover, the use of a less deferential standard in cases like Ryan would not unduly endanger inmate rights or hamper prison administration. One could argue Ryan properly applied Turner since execution regulations inherently impact inmate rights. After all, auditory access to executions may limit an inmate’s right to privacy67 or, if auditory access hindered officials’ ability to carry out executions, an inmate’s right to be free from cruel and unusual punishment.68 However, the Ryan plaintiffs claimed Arizona’s restrictions violated only the rights of the public,69 and increased public access to executions could actually drive reform that protects inmates.70 In addition, the policy rationale of Turner71 does not apply in cases like Ryan. The Ryan panel dismissed concerns that auditory access may disrupt executions or endanger officials,72 and the Woodford panel noted the execution-access regulation at issue did not “implicate[] security inside the prison.”73
Precedent ultimately bound the Ryan panel to the Turner standard. Given ongoing litigation around public access to executions,74 the en banc Ninth Circuit or the Supreme Court — if faced with the Ryan case or a similar challenge — ought to consider a higher standard of review to better account for the right of the public that hangs in the balance.