Barry Graham: Illusory Flowers in an Empty Sky

Before Samuel Lopez was executed in Florence, AZ, on June 27, he received a letter, dated June 5, from Charles Ryan, Director of the state’s Department of Corrections, who wrote:

You may choose to make a final statement that is reasonable in length and does not contain vulgar language or intentionally offensive statements directed at the witnesses. The microphone will remain on during your statement. It will be turned off, however, in the event that you use vulgarity or make intentionally offensive statements.

I asked Dale Baich, Federal Public Defender in Phoenix, “Does Ryan have the authority to decide what is offensive, or intended to offend, and to shut off the mic? Does the prisoner have a legal right to last words, or is it discretionary?”

Baich said he didn’t know, but showed me an essay called “The Meaning of Death: Last Words, Last Meals” by law professor and author Linda Ross Meyer. In a footnote, she writes:

I am not aware of a case making an 8th Amendment argument for a “last words” or “last meal” right. But there is at least one case making a First Amendment argument. See Treesh v. Taft, 122 F. Supp.2d 881 (D. Ohio 1999)(challenge to Ohio’s policy of allowing only written last statements. The litigation was later settled when Ohio agreed to allow inmates to give oral last statements to assembled witnesses). See, Kevin Francis O’Neill, Muzzling Death Row Inmates: Applying the First Amendment to Regulations that Restrict a Condemned Prisoner’s Last Words, 33 Ariz. St. L.J. 1159 (2001)(arguing that curtailing or censoring an inmate’s last words to witnesses violates the First Amendment and arguing for an analogy to defendants’ right ofallocution before sentencing)

This morning I emailed the following questions to Charles Ryan:

• Do you have the legal authority to decide what is offensive? If so, what criteria do you apply?
• Do you have the legal authority to decide what is intended to offend? If so, what method do you use to determine a person’s intentions?
• Does the prisoner have the right to speak before being executed, or is it a privilege that can be granted or denied at the discretion of the Department of Corrections?
• If it is the prisoner’s right to speak, do you have the legal authority to turn off the microphone while a prisoner is saying their last words, if you deem what is being said intentionally offensive? If so, what is the point of law that gives you this authority?