By Terri Langford
The Texas Tribune
Originally published June 5, 2014

At a time when a botched lethal injection in Oklahoma and secrecy about how Texas prisons obtain lethal injection drugs have increased public scrutiny of the procedure, the Texas Department of Criminal Justice is allowing fewer media outlets to attend executions.

There are only five media seats available in one of two tiny viewing rooms adjacent to the Texas execution chamber in Huntsville. While some of those seats have long been reserved for specific media outlets, the TDCJ has in the past allowed other reporters to fill empty chairs when those journalists couldn’t attend. Now, those seats remain empty, reducing the number of witnesses in the nation’s busiest death chamber.

About two to three years ago, TDCJ public affairs officials began more strictly apportioning media seats, said Jason Clark, who became the agency’s chief spokesman in 2013. The media seats in the viewing room are the only way members of the public who aren’t related to the murder victim or the condemned inmate can obtain independent observations of the controversial procedure.

“We are not under any obligation to open media witness slots to any organization who asks to view an execution,” Clark said.

While the TDCJ argues it is simply following long-standing procedure, media lawyers say the stricter enforcement of the rules prevents transparency.

Just before a last-minute stay halted TDCJ’s execution of Robert James Campbell last month – the nation’s first execution scheduled after the mishandled April 29 execution in Oklahoma of Clayton Lockett — eight media members had requested a seat in the witness room. TDCJ approved seats for reporters from the Associated Press, The Huntsville Item and Houston Chronicle, and from two Houston-area TV stations. Requests from reporters for ABC News, The New York Times and The Texas Tribune were denied, and they would not have been allowed to attend even if the other reporters were unable to.

Since the death penalty was reinstated in 1982, TDCJ has usually reserved two of the five media seats in the execution viewing room, one for the Associated Press and one for The Huntsville Item.

Decades ago, the other three seats could be taken by others who asked, with preference to journalists who were based in the region where the crime occurred.

In the 1990s, journalists from The New York Times, a New York CBS affiliate, NBC Dateline and even one from Germany were permitted to observe Texas executions.

It’s not clear precisely when TDCJ’s policy shifted, but Clark said today, if a seat is unclaimed by a local reporter, it will remain empty. 

“Those slots are reserved for those media organizations from where the crime happened,” Clark said.

Confirmation that the agency is more strictly enforcing its execution viewing rules comes one week after Texas Attorney General and Republican gubernatorial candidate Greg Abbott reversed his previous rulings and allowed TDCJ to keep information about the compounding pharmacies that supply execution drugs secret.

TDCJ has argued that releasing information about the pharmacies could put those companies at risk of retaliation.

Nationwide, as traditional supplies of lethal injection drugs have dried up and states have turned to new sources, pressure has increased for more information about the execution process both from defense attorneys for inmates and from the media.

Last month in Missouri, several news organizations, including the Associated Press, sued the state corrections department, arguing that secrecy about the drug cocktail used for executions there violated the First Amendment. In other states, media organizations have challenged witness policies that restricted viewing to only part of the execution and not the entire process.

Dallas lawyer Paul Watler and other Texas media attorneys said they believe TDCJ should leave no media viewing slot vacant if there are pending requests.

“It does not serve the public interest and is certainly not transparent to have seats for the news media that are not utilized because the department will not permit, in some cases, accredited news organizations to attend,” said Watler, a board member of the Freedom of Information Foundation of Texas. (Ross Ramsey, executive editor of The Texas Tribune, is a FOIFT board member.) “The foundation believes TDCJ should reconsider and modify its policy so that at each execution there is access to five members of the media regardless of geographic location.”

Although Texas leads the nation in the number of executions – 515 since 1982 — it has one of the more restrictive viewing policies with the fewest media seats offered. That is partly because the two execution viewing rooms are cramped. Both are about the size of a small walk-in closet and also serve as the viewing areas for family members of the condemned and of the murder victims.

In Oklahoma, there are 12 media seats. In Florida, 10. In both of those states, media witnesses are selected in a lottery system if the number of requests for the seats exceeds the number available.

Watler said media access to executions is vital.

“Everyone in the state of Texas has an interest in an execution,” he said, “the state, the victim, the defense, as well as the public.”