By Betsy Russell
I was puzzled when I saw the arguments that the state filed on May 30 in our court case over media access to Idaho executions, suggesting that unlike California – where a 9th Circuit decision in 2002 ordered executions opened to witnesses in their entirety – a review of Idaho’s laws showed no history of media witnesses observing executions.
The state suggested in court documents that because an 1899 Idaho law moved executions to the state level – they’d previously been done at the county level, and most had been open to the public – and required the state to “provide a suitable room or place, closed from public view within the walls of the state penitentiary,” that Idaho had no history of execution access.
The state’s arguments repeated that phrase, “closed from public view within the walls of the state penitentiary,” in bold face, five times in a five-page document.
I called AP reporter Rebecca Boone, who has done extensive research and reporting on Idaho executions. “I don’t think that’s right,” she said. She recalled touring the witness room at the gallows at the Old Idaho Penitentiary, where Idaho’s last hanging was held in 1957.
The Old Pen was a functioning prison for 101 years, from 1872 to 1973, first as the Idaho Territorial Penitentiary, and then as Idaho’s state prison. It was the site of nine hangings under state auspices from 1901 to 1957; it’s now a museum open to the public.
The Old Pen maintains files on each of the condemned inmates hanged there, including copies of reports from the newspapers of the day and records of each condemned man’s final meal, last words and time of death; I spent several interesting hours combing through the files.
My next stop was the Idaho State Archives, located at the Idaho History Center, just down the road from the Old Pen. The Idaho State Archives provides public access and archival management for the State of Idaho’s 123,000 cubic feet of public records, as well as photographs, manuscripts, maps, books, periodicals, state documents, and oral history interviews.
There I found the original newspapers that were the source of the copies in the Old Pen files; records from the Idaho Oral History Project, including interviews with guards at Idaho’s last state hanging in 1957; and the newspaper page on which the Idaho Daily Statesman, in 1909, published an invitation from the warden to “Reporter, Boise Statesman” to attend the May 7, 1909 execution of Fred Seward.
State archivist Rod House informed me that the old newspapers are kept at the Archives both in hard copy, and on microfilm; and furthermore, there’s an indexed historical database of the Idaho Daily Statesman available through the Boise Public Library online. All I needed was my library card to access it.
The next day, I visited Idaho’s legislative library at the Idaho State Capitol, to look up the 1899 law. I found the law itself and the records that it had passed. But in those days, there were no Statements of Purpose and no committee minutes kept, so little light was shed on why lawmakers included that “closed from public view” line.
Next, I went back to the Boise Public Library database, and looked up articles from the time the law was passed. I found just one, noting that it had passed and been sent to the governor, and would move executions to the state prison. Then the article immediately moved on to discussion of an irrigation bill; the execution bill apparently aroused little controversy.
So why was that wording in the law? We can do no more than speculate. I think it may have been because the state was seeking to move away from the public spectacle of hangings before crowds of hundreds or thousands.
The book “Hanged, A History of Idaho’s Executions,” by Kathy Deinhardt Hill, relates a tale of how when James Ellington was hanged in Boise in 1896, the black cap slipped off his face, revealing his death throes to the crowd in a “horrifying spectacle.” I found the May 28, 1896 Idaho Daily Statesman article, which, under the subhead “A horrifying sight,” wrote, “Ellington passed like a flash almost the entire distance of the fall with his face uncovered. The spectacle was horrifying and an involuntary shudder ran through the crowd.”
Hangings were public events in those days. Several thousand people were present for the triple hanging on the outskirts of Lewiston in 1864 for the infamous Magruder Massacre. A crowd of 300 watched Anthony McBride’s hanging at Crane Gulch, 2 miles north of Boise (near the present-day site of Highlands Elementary School), in January of 1868.
Though the 1899 law moved Idaho’s executions inside the state prison walls, it did not spell the end of media witnesses to Idaho executions – far from it. Perhaps that history helps explain why Idaho’s modern-day execution protocols, like those of every state, have always included access for media witnesses in the process, to report to the public on what has occurred.
U.S. District Judge Edward Lodge sided with the news media on this point, writing in his June 5 court order, “The undisputed reality as supported by the newspaper accounts of past executions and the specific language in IDOC’s Protocol 135 (which provides for numerous witnesses including the media), is that some portion of the public has historically viewed the execution process in Idaho. Further, this Court agrees with Plaintiffs that society has a critical interest in having at least some members of the public view the government’s implementation of a death warrant.”
Betsy Russell is a Boise-based reporter for The Spokesman-Review.
