This article originally appears in The American Thinker

It is perhaps inevitable that following a high profile execution like the State of California carried out on Tookie William that the debate on making executions a public event should be re-opened. And while the death penalty issue itself is usually reduced to moral arguments or its efficacy in a modern industrialized society, the idea of allowing 300 million people to become living witnesses to another human being’s death causes even many death penalty advocates to squirm uncomfortably in their seats, recoiling at the prospect of watching life leave another person against his will.

Does this say more about our society’s attitudes toward death or does it say something profound about our ambivalence toward the death penalty? This is no small matter for on the answer rests the fate of the death penalty itself.

The last public execution in the United States was in 1936 in Owensboro, Kentucky. But the fight to hide the execution of criminals from public view actually extends back several decades to the turn of the century. The Progressive movement in the United States was all about reform and most progressives believed it barbaric to have people witness the death of a condemned criminal. It called to mind the worst excesses of Rome as well as clashing with Victorian ideas of modesty surrounding death rituals. So beginning in 1890, states began enacting laws that placed the execution of prisoners behind “enclosures” in order to “exclude public view.”

For example, in 1919, the Missouri legislature adopted a statute which required, “the sentence of death should be executed within the county jail, if convenient, and otherwise within an enclosure near the jail.” The Missouri law permitted local officials to give out passes to anyone who requested one in order to become a “witness” to these the executions but this was honored mostly in the breach. In this respect, Missouri’s executions were not “public” because the general populace was excluded by law and the execution itself was carried out behind an enclosure.

Of course, there were still witnesses to executions but these were carefully chosen people whose numbers were kept extremely low. A big reason for this was the manner of execution – electrocution.

There is perhaps no more gruesome way to die than being electrocuted to death. It should go without saying that if an electrocution had ever been televised, public opinion on the death penalty could very well have flipped. Supreme Court Justice William Brennan gave this description of an electrocution he witnessed: (WARNING: GRAPHIC DESCRIPTION OF DEATH FOLLOWS)

...the prisoner’s eyeballs sometimes pop out and rest on [his] cheeks. The prisoner often defecates, urinates, and vomits blood and drool. The body turns bright red as its temperature rises, and the prisoner’s flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches fire….Witnesses hear a loud and sustained sound like bacon frying, and the sickly sweet smell of burning flesh permeates the chamber.

Clearly, it was in the interests of supporters of the death penalty to keep this grotesqueness from the general public.

Then in the 1980’s there was a series of botched executions where horrible suffering occurred when an electric chair malfunctioned. One such execution in Georgia of Otis Stephens was particularly gruesome:

After the first jolt of electricity failed to kill him , Stephens struggled for eight minutes before a second charge finished the job. The first jolt took two minutes, and there was a six minute pause so his body could cool before physicians could examine him (and declare that another jolt was needed.) During that six-minute interval, Stephens took 23 breaths.

But as more and more journalists began to give graphic (and sensational) descriptions of botched executions in the 1980’s and 90’s, anti-death penalty sentiment began to grow. This led to the adoption of the current method of execution by lethal injection. First proposed in Oklahoma in 1977, lethal injection seemed to fill the bill for death penalty advocates in that it offered a more “humane” way to execute prisoners. The process is simple; three drugs are administered by IV into an inmates veins. The first drug is a strong sedative that induces unconsciousness. The other two drugs stop the heart and respiration.

But even with death by lethal injection, there is suffering that would make televising executions problematic. For example, Tookie Williams execution was marred by a frantic search for a vein in which to place the IV’s. This is not uncommon in executions by lethal injection. Some inmates have had to wait up to 40 minutes (WARNING: GRAPHIC IMAGES OF DEATH) strapped to the chair as poorly trained state employees try and hook up the IV’s. The fact that there are very few doctors and nurses who would break their oaths not to cause a patient harm means that the state must often staff the execution themselves with lay prison workers.

But all of this skirts the real issue of whether or not executions should be televised. Both advocates and opponents of the death penalty have formed an unlikely alliance on the issue – for different reasons of course. Opponents believe that if the American people saw what goes on in the death chamber that their outrage would sweep the death penalty from the books. Advocates are a little more prosaic in their support. They see public executions as confirmation that the state-sponsored death of an inmate is a judgment by society itself and that all should bear witness to what we have wrought. There is also, proponents believe, a deterrence factor inherent in televising executions.

It should be pointed out that there is not a shred of evidence that any deterrent benefit will accrue to society if we make executions public. It is also true that there is no evidence that what would surely be the biggest TV audience in history would be swayed one way or another about capital punishment by witnessing an execution live and in color. What should be the criteria then for deciding whether or not public executions should be allowed?

In many ways, the way a person dies is the most personal and private moment in their life. Watching as life leaves the body has been described as a mystical experience – one moment the person is “there” the next they are “gone.” For this reason, courts have continuously held that prisoners have a right not to be forced into public executions. And of course, it should go without saying that the effect on innocent family members of the condemned who would be watching (or knowing that everyone else is watching) their loved one’s death would be horrible indeed. But when is the personal outweighed by the political? Does society’s compelling interest in bearing witness to an execution outweigh the hardship that would fall on innocent family members?

Oklahoma City bomber Timothy McVeigh did not formally request that his execution be televised. But he did question the number of witnesses that were allowed to watch him die:

Given the crime for which McVeigh was convicted, it seems logical to assume that his motives in wishing to have his execution televised are simply to undermine the legitimacy of the federal government by broadcasting a horrific act that the government sanctions. However, if the government sanctions such an act, then by definition (at least in this country), the people sanction it. Clearly, if the public wishes to continue to sanction executions, it is going to have to come to grips with the nature of the procedure. It is gruesome. Executions behind closed doors serve one legitimate purpose; that is protecting the privacy and the dignity of the condemned individual. For that reason, courts have rightly held that prisoners cannot be forced into public executions.

But is “the privacy and dignity” of the condemned reason enough to prevent the people’s need to see what the government is doing in their name? Is it our right to know what it’s like to be executed?

These were questions taken up the the North Carolina Courts in Lawson v. Dixon in which a condemned inmate wished to have his execution filmed and broadcast on the Phil Donahue Show. Their arguments settled on Mr. Lawson’s 14th amendment equal protection claims and Mr. Donahue’s First Amendment right to use “the tool of his trade” – a TV camera – to cover the execution. The three arguments put forth by the warden of the prison (Dixon) were:

1) the ban on cameras in the witness room protected the identity of prison employees involved in the execution from angry inmates and an angry public, 2) broadcasting an execution would incite violence in the prison, thereby threatening prison employees, and 3) video cameras could be used to break the heavy glass surrounding the gas chamber thereby threatening the lives of those individuals in the witness room.

The North Carolina Supreme Court ruled in favor of Dixon, finding that the warden had compelling reasons to exclude video cameras. They also dismissed the claims of Lawson based on the 1st and 14th Amendments. However, the 4th Circuit Court of Appeals, while not required to address the merits of Lawson’s claim, called into question the validity of the North Carolina Supreme Court’s determination that Lawson did not have any constitutional guarantee to either 1) select those persons whom he wished to witness his execution, or 2) to require that his execution be filmed.

What this means is that it’s possible that public executions in America may become a reality. With the explosion of cable outlets, all it would take would be one tabloid TV show with enough money (and moxie) to convince an inmate to fight for the right to have his execution plastered all over TV. The inmate’s family could be in for a huge payday. This scenario was actually the subject of a 1991 movie entitled Witness to the Execution. And while the story centered on the inmate’s second thoughts of having his execution broadcast on a Pay-Per-View basis and the slimy journalist who coaxed him not to back out, it is not beyond the realm of the possible that such a situation could arise.

Wouldn’t it be better to craft laws that guarantee access to the media in the form of pool coverage? And the biggest question of all; could we actually trust the media not to turn the execution into a three ring circus?

As for the first question, while it may be better to regulate coverage of an execution rather than have it turn into a competitive bidding process, the technical aspects of coverage would be a huge challenge to legislate. However, it has been done before. The law opening up the House and Senate to TV coverage stipulated camera angles and other technical requirements so as not to show lawmakers asleep at their desks or the fact that most speeches are given to a completely empty chamber. Clearly, where there’s a will, there would be a way.

But is the desire really there to televise executions? There is no public clamor at the moment but that may change if an inmate were ever to win a case that would force prisons to open the death chamber to cameras. And that begs the question; how would TV networks handle an execution?

My guess is that it would unintentionally become the biggest extravaganza in TV history. The worldwide audience would be staggering. And no amount of respectful commentary or phony piety on the part of the talking heads would be able to obscure the fact that a human being – cowardly, brutal, and thuggish as he may be – would die right in front of our eyes. “As men, we are all equal in the presence of death” said Publilius Syrus. This is a truth that many Americans may find unpalatable. Would we as a society be able to deal with public executions or would we find the entire exercise so distasteful that the political rationale for capital punishment would evaporate?

We may find out sooner than we are prepared to admit.