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HOME > CJ Ethics > Pt 6 Emerging Issues > Televising Executions > lawsuit to webcast McVeigh's execution

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.

This picture is of the military standing with coffins of soldiers killed in Iraq. I'm not sure why their privacy needed to be protected this way, but I will respect that it was important. 

The question, however, is if the government can black out faces for privacy in this context, why is there a concern about the privacy of officers involved in a televised execution? Couldn't the government do exactly what they have done in these Dept of Defense photos?

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?
( 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

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