News
Letters

MICHELE A. PARISH, ACTING EXECUTIVE DIRECTOR
MARK SILVERSTEIN, LEGAL DIRECTOR

September 16, 1997

Governor Roy Romer
136 State Capitol Building
Denver, CO 80203

Dear Governor Romer:

This is a request under the Colorado Open Records Act, Colorado Revised Statutes § 24-72-204 et seq., for the release of documents and/or information that will reveal the day and hour at which the upcoming execution of Gary Davis is scheduled.

This request for disclosure is made on behalf of Amnesty International Group 60 and the Colorado Coalition to Abolish the Death Penalty. These groups that oppose the death penalty plan to conduct a peaceful protest and vigil outside the penitentiary where the execution will take place. They believe that they can attract more supporters and reach a wider audience if they can plan the event to take place while the execution is actually occurring. Without the requested disclosure, they will be deprived of the opportunity to maximize the impact and effect of their message.

Section 16-11-404 of the Colorado Revised Statutes states that the Executive Director of the Department of Corrections shall fix the particular day and hour of the execution. It further provides that the director shall not make the information public but "shall notify the governor of the day and hour for the execution as soon as it has been fixed." Id.

Although reports appearing in the press suggest that Colorado law requires that the date of an execution remain secret, it is clear that the portion of the statute requiring nondisclosure applies only to the Director of the Department of Corrections.

The statute does not prohibit the Governor from making the information public, nor does it express any general public policy requiring that the Governor withhold this information. Accordingly, the disclosure provisions of the Open Records Act apply to the documents and/or information requested.

Indeed, if Section 16-11-404 prohibited you from disclosing the date of the upcoming execution, Colorado would be nearly alone in maintaining that an execution date must be kept from the public. I am aware of only one state, Maryland, that maintains that the date of a scheduled execution is an official state secret. According to a news story, Maryland adopted the policy of secrecy by statute in 1922 in order to prevent members of the public from gathering outside the site of executions:

"The law’s intention, the legislation states, is ‘to relieve the counties of this state from the curious mobs that frequent hangings taking place in the counties of this state and from those who attempt to make public affairs of same.’"

Norris P. West, "Death penalty opponents, supporters demonstrate," Baltimore Sun, May 17, 1994.

Certainly, the government does not have any legitimate interest in preventing members of the public from assembling, especially when they assemble for the purpose of encouraging public discussion about the propriety of the government’s activity.

Nevertheless, it appears that the Colorado statute enjoining the Director of Department of Corrections to secrecy, which was originally enacted in 1889, was adopted for the same reasons as the Maryland statute. An early Colorado case describes the purpose of the original statute:

It is a part of the public history of the state that prior to the passage of this act the death penalty with us was usually inflicted in public, at a previously advertised hour, in the presence of a large concourse of people, and the particulars of the execution published in the public journals. In deference to the wish of many good citizens, who were of the opinion that the tendency of such proceedings was detrimental to the public morals, the recent statute was passed, requiring executions in the future to be conducted privately, at the penitentiary, enjoining secrecy upon the few persons required or permitted to be present; and making it a misdemeanor, punishable by fine, for such persons to disclose the details of the execution, or for the press to publish the same.

"In re Tyson", 13 Colo. 482, 485-86 (1889).

As the Tyson case makes clear, the original statute prohibited all witnesses and participants from divulging the date in advance. It also made it a crime for the witnesses or the press to report any details of the execution procedure, except the bare fact that the sentence had been carried out. It is clear that under modern decisions interpreting the Constitution, courts would not uphold the secrecy provisions of the original 1889 statute, nor would courts credit any asserted government interest in forestalling public assembly, preventing public discussion, or minimizing the scope of the facts that are published in public journals.

The original secrecy provisions of the 1889 statute have been modified over time. In 1955, the legislature repealed the portion of the statute that prohibited witnesses from publishing or otherwise revealing what they had seen at the execution. See Session Laws, 1955, p. 280, amending C.R.S. 39-11-4. Throughout the 1960s, however, the authorities conducting the execution and the witnesses invited to be present were still forbidden, under pain of criminal penalties, from disclosing the date of the execution in advance.

These provisions were modified again when the criminal code underwent a major revision in 1972, resulting in the adoption of the current provisions. Under the changes enacted in 1972, witnesses are no longer forbidden to disclose the date of an execution, and the criminal penalties are abolished. In addition, the language regarding the selection of the execution date has been changed. Although the official who sets the date is still prohibited from making that information public, the statute for the first time instructs that official to communicate the date to the Governor. Most significantly, the statute leaves the Governor free to disclose the date to the public. This development reflects a major change in the Colorado statute governing the procedure for implementing the death penalty.

Colorado has not yet conducted an execution under the new date-setting procedures enacted in 1972. Perhaps that may explain the overly broad statements in the press to the effect that Colorado law forbids advance disclosure of the execution date. While the Director of the Department of Corrections is forbidden to disclose the date, the 1972 statute requires the director to disclose the information to the Governor, and the Governor is free to disclose it.

The execution is the last stage of the criminal proceedings in the case of Gary Davis, and the First Amendment provides a right of public access to such criminal proceedings. In California First Amendment Coalition v. Calderon, 956 F. Supp. 883, (N.D. Cal. 1997), Judge Vaughn Walker ruled that public witnesses, including the media, have a constitutionally-protected right to observe executions. An obvious corollary of that right is the right to know the time and date of such an execution so that the public can gather outside the penitentiary walls in protest or in support of the government’s action.

If you choose to deny this request, then I ask, pursuant to § 24-72-204(5) of the Colorado Revised Statutes, that you provide a written statement of the grounds for the denial, providing the law or regulation upon which you rely for denying access.

The law provides for judicial review of a denial of access to documents and information. As you know, the warrant provides that the execution will be carried out some time in the week beginning October 11, 1997. In order to provide sufficient time for judicial review before that date, I would ask that you reply no later than Friday, September 19, 1997.

Sincerely,

Mark Silverstein,
ACLU Legal Director


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