Witnessing an execution is always problematic, even when there’s nothing much to see
FILE - This photo shows the gurney in the the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla., on Oct. 9, 2014. A federal judge in Oklahoma on Monday, June 6, 2022, ruled the state's three-drug lethal injection method is constitutional, paving the way for the state to request execution dates for more than two dozen death row inmates who were plaintiffs in the case.
James Coddington was put to death in Oklahoma on Aug. 25 for the 1997 murder of his friend and coworker, Albert Hale. His was the first of the state’s planned 25 executions in the next could of years.
Witnesses accounts of his execution gave the impression that there was nothing much to see, since all seemed to go according to plan. Yet the accounts of what they saw — and what they didn’t see — offered a reminder of the long history of witnessing executions and the problems associated with that act.
The tradition of having witnesses at an execution is almost as old as execution itself. And while people no longer are put to death in public, state law in Oklahoma and elsewhere allows some people to see them. In the past, some states have even recruited witnesses.
Some people, especially the victim’s family, may feel compelled to see for themselves that a convicted person has been put to death. They seek closure and consolation.
Others, like the condemned inmate’s lawyer, may be present as a comfort to their client or to provide any last minute legal representation. Still others witness out of a sense of duty or because it is their job to do so.
Media witnesses may be there as the public’s eyes and ears. As the late ABC News reporter Ted Koppel said of his own decision to witness the 1995 Texas execution of Mario Marquez, “If we are going to live with capital punishment we have to see it and know what it is about.”
Today, witnessing executions occurs within a framework of state laws and regulations that create a hierarchy among witnesses, privileging some and burdening others.
Some, usually family members of the victim, have a right to attend. Others, including family members of the condemned and media witnesses, require permission and are subject to various background checks and rules of decorum.
Regulations also differentiate those who must witness from those who may be present. Included in the first category in Oklahoma are the “Agency director or designee and H Unit Section chief shall be present.” H Unit is the name of Oklahoma’s death row. Others who “may” be present include an odd array of state officials, some of whom were involved in the case of the condemned, including: the Cabinet Secretary of Public Safety or designee; the judge who presided during the trial; the chief of police of the municipality in which the crime occurred; the district attorney or designee of the county of conviction and other law enforcement officials.
The regulations say that the condemned may have five witnesses “as selected by the inmate and approved by the director (of the DOC).”
Because of a heightened concern for security when outsiders are allowed into the prison where Oklahoma’s executions are carried out, family members of both the victim and the offender are subject to a “criminal records check.”
In Oklahoma, each media witness must agree “to immediately report to the non-witnessing members of the assembled news media” their account of the execution as they witnessed it “immediately following the execution” and prior to filing their story. The repeated reference to “immediately” suggests some suspicion that delay might introduce inaccuracies or that advocacy groups would exert undue influence on media witnesses once they are outside of DOC control.
Witnesses at Coddington’s execution included his victim’s son, Mitch Hale, and other family members, five media witnesses, two lawyers from the Federal Public Defender’s Office and the Oklahoma’s Cabinet Secretary for Public Safety.
They had very different reactions to what they saw.
Emma Rolls, one of Coddington’s lawyers, cried quietly in the witness room during his execution.
After it was over, Mitch Hale told the press that he had taken no “joy” in witnessing the execution, but wanted to be present to “represent” his father. He claimed that seeing Coddington die would allow him and his family to “move on after years of legal proceedings” — even though he was convinced, because Coddington did not use his final words to apologize to the Hale family, that he had never been truly remorseful.
The four media witnesses who attended the execution each offered chilling minute by minute accounts of what they had seen.
One of them, Reporter Chris Polansky of KWGS in Tulsa, later told a National Public Radio interviewer that “everyone was watching to see if there would be any problems,” as there have been during past Oklahoma executions. “There were no visible convulsions,” he said, “or any other signs that I could see, as a witness, that anything went wrong.”
What Polansky and the other media witnesses said after Coddington’s death might reassure us that we can know, as Koppel said, what capital punishment “is about.” But the few minutes of an execution that witnesses are allowed to see cannot give them — or us — an adequate understanding of the capital punishment process and its meaning.
Lawyers who represent the condemned and those who have gone through the death penalty journey may have that understanding. But for others seeing an execution, as the well-known death penalty defense lawyer David Bruck once noted, may “give a false and misleading picture of the damage and suffering which is necessarily part of the capital punishment process… It doesn’t show the effect of this process on anyone else…(and) it creates the illusion the viewer is seeing the truth.”
No deeper truth about capital punishment or about the condemned person’s experience can be found in witnessing a person being put to death. I am convinced, as the cultural critic Wendy Lesser says, that doing so can be “nothing short of ghoulish.”
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including Gruesome Spectacles: Botched Executions and America’s Death Penalty and Lethal Injection and the False Promise of Humane Execution. The views expressed here do not represent Amherst College.