Political scientist shreds flawed reasoning behind red state law

In the U.S., 27 states, according to the Death Penalty Information Center, still have capitol punishment — although they aren't necessarily enforcing it (swing state Pennsylvania's last execution was Gary Heidnik in 1999). Indiana, however, had an execution as recently as 2025, when convicted killer Roy Lee Ward died by lethal injection. And political scientist Austin Sarat takes issue with a controversial part of Indiana's death penalty law in an op-ed for The Hill.

Sarat, who teaches political science and jurisprudence at Amherst College in Massachusetts, doesn't really argue for or against the death penalty in his op-ed. Rather, Sarat argues against the reasoning behind Indiana's law generally barring the press from state executions.

"Indiana law says that the press has no right to be present when the state carries out executions," Sarat explains in The Hill. "It limits those who can attend to the warden of the prison where the execution is carried out, immediate family members of the crime victim, no more than five friends or relatives of the convicted person, the prison physician, and the prison chaplain. Only if an inmate selects a member of the press as one of the five friends may they attend."

Indiana's law states that reporters are barred from executions in order to protect the "dignity" of the person being put to death — an argument that Sarat considers highly flawed.

"Last year, a coalition of news organizations sued in federal court, alleging that the state's ban on press access violates the First Amendment guarantee of freedom of the press," Sarat writes. "On June 5, in a split decision, the U.S. Court of Appeals for the Seventh Circuit ruled against them…. And its decision tees up a case for the Supreme Court to say once and for all that the First Amendment guarantees press access to executions. Whereas other states limit the number of reporters who may witness an execution, as well as what parts of an execution they are allowed to see, Wyoming — which hasn't executed anyone since 1992 — is the only other state that does not allow press access to executions."

Sarat notes that Indiana "defends its limitations on access to executions by advancing the dignity argument that the Seventh Circuit embraced."

"In addition, it argues that because reporters remain free to publish whatever they wish, and the law treats the press no differently than it treats members of the public, there can be no First Amendment violation," Sarat observes. "The Seventh Circuit majority bought both of those arguments, claiming that executions have not 'historically been open to the press and general public' in many parts of the country for over a century.' Although it is true that executions are no longer carried out in public, even after they were brought inside prison walls, the press has almost always been part of the group that witnesses them, except in Indiana and Wyoming…. There is, of course, something odd about using the word 'dignity' to describe what happens when the state kills one of its citizens, and about allowing the state that seeks to do that deed to speak for a condemned person."

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