Schnader Attorneys Represent Newspapers in First Amendment Victory Related to PA Executions

In 2012, Schnader attorneys Stephen J. Shapiro, Paul H. Titus and Monica C. Platt partnered with the American Civil Liberties Union of Pennsylvania (ACLU) to challenge, on behalf of The Philadelphia Inquirer and The (Harrisburg) Patriot-News, a Pennsylvania Department of Corrections (DOC) policy that prevented members of the public and the press selected to witness lethal injection executions from seeing and hearing the entirety of the execution.

Under the DOC’s policy, prison officials would draw a curtain over the window between the execution chamber and the witness room while the inmate was escorted in the chamber, strapped to the injection table, and connected to the IV lines that would deliver the lethal drug cocktail. The prison opened the curtain only after all of these preparations were completed and seconds before prison officials administered the lethal injection cocktail. In addition, although a public address system connects the execution chamber to the witness room, it was switched off during the execution, so witnesses could not hear audio from the chamber. 

The DOC claimed that these measures were necessary to protect the identities of the IV technicians, even though the policy required the technicians to wear identity-concealing head-to-toe surgical garb (hats, masks, gloves and gowns) at all times. The policy prevented witnesses from observing, among other things, whether the technicians encountered difficulties inserting the IV lines, which occasionally has been a problem in other states. 

The Schnader attorneys filed a Section 1983 action challenging the constitutionality of the DOC’s policy in the United States District Court for the Middle District of Pennsylvania in September 2012 and immediately moved to preliminarily enjoin the DOC from enforcing the policy during two executions that were scheduled for fall of 2012. After expedited discovery and an evidentiary hearing, Chief Judge Yvette Kane granted the motion. For reasons unrelated to the lawsuit, neither of the scheduled executions took place.

During preparations for trial on plaintiffs’ request for a permanent injunction, the Schnader team gathered evidence establishing that other states that permit witnesses to see the entire lethal injection process have been able to continue performing executions without incident. Ultimately, as part of a negotiated settlement, the DOC agreed to amend the policy to permit witnesses to see and hear inside the execution chamber from the time the inmate enters the chamber until he or she is declared dead.

The settlement resulted in several articles including those featured in the The Patriot-News, The Philadelphia Inquirer and The Pennsylvania Record.