Virginia DOC says execution audio tapes should remain secret

On a 1989 audio recording crackling with static, an inmate is barely audible as he offers his last words before he is executed in Virginia's electric chair.

“I would like to express that what is about to take place ... is a murder," Alton Waye — who was convicted of raping and murdering a 61-year-old woman — can be heard saying, before a prison employee clumsily tries to repeat what Waye said into a tape recorder.

“And that he forgives the people who's involved in this murder. And that I don’t hate nobody and that I love them," the employee says.

The recording of Waye's execution, which was recently published by NPR, is one of at least 35 audio tapes in the possession of the Virginia Department of Corrections documenting executions between 1987 and 2017, the department recently confirmed.

The Waye recording offers a rare public glimpse into an execution, a government proceeding often shrouded in secrecy and only witnessed by a select few, including prison officials, victims, family members and journalists. Even those who are allowed to witness are often prevented from seeing or hearing the entire execution process.

But the department has no plans to allow more recordings to be released to the public.

The Associated Press sought the Virginia audio tapes under the state's open records law after NPR recently reported on the existence of four execution recordings, including the Waye tape, that had long been in the possession of the Library of Virginia.

But shortly after NPR aired its story, the Department of Corrections asked for the tapes back and the library complied. The department then rejected the AP’s request for copies of all of the execution recordings in its possession, citing exemptions to records law covering security concerns, private health records and personnel information.

Several death penalty experts said the four recordings in Virginia and another 23 Georgia execution tapes released two decades ago are believed to be the only publicly available recordings of executions in the U.S.

Richard Dieter, the acting interim director of the Death Penalty Information Center, a nonprofit organization that tracks and opposes capital punishment, said he would not be surprised if some other states have secretly recorded executions “just to protect themselves" against lawsuits.

“States are wary of things being done right and being challenged in court, and want to have their evidence,” Dieter said.

“So much is secretive that I don't know that they would want to reveal if they have such tapes," he said.

A 2018 report by the center found that of the 17 states that carried out a total of 246 lethal-injection executions between January 2011 and August 2018, 14 states prevented witnesses from seeing at least part of the execution, while 15 states prevented witnesses from hearing what was happening inside the execution chamber.

Virginia, long one of the country's busiest death penalty states, ended capital punishment in 2021, and lawmakers have since defeated legislative efforts to bring it back for certain crimes. But researchers and transparency advocates said the department's decision to withhold the tapes raised concerns and would limit the ability to scrutinize or research previous executions.

The tapes obtained in NPR's investigation were donated to the library in 2006 by a now-deceased former Department of Corrections employee named R. M. Oliver, the library said in a statement to AP.

NPR reported that how Oliver ended up with the tapes and why he donated them remains a mystery.

Carla Lemons, a spokeswoman for DOC, said the files that ended up at the library were taken “without VDOC’s knowledge or permission.” The department asked for them back “so we could appropriately maintain them with the other execution files in the agency’s possession,” Lemons wrote in an email.

The library said it agreed after consulting with its legal counsel.

Lemons said the DOC generally keeps execution records in its possession until at least 50 years after the execution. She defended the department’s decision to withhold the records.

“Although the department may have discretion to release certain materials contained within the execution files, VDOC gives deference to the privacy interests of current and former VDOC employees, victims, and inmates and, therefore, chooses not to publicly release these sensitive materials,” she wrote.

Dale Brumfield, an author, journalist and death penalty opponent who has written a book about capital punishment and its abolition in Virginia, said he also received the four tapes NPR covered last year from the library after an initial request was rejected years earlier.

Brumfield said he thinks the value of the tapes to the average listener is minimal, though he said they offer insight when compared to other records and news accounts.

NPR cited accounts by three local reporters who watched the 1990 execution of Wilbert Lee Evans — who was convicted of murdering a sheriff's deputy — and said that after the administration of the first jolt of electricity from the electric chair, Evans started to bleed from his eyes, mouth and nose.

But the tape of the execution does not record those details. The DOC employee who narrated the recording did not mention any evidence of blood.

Brumfield said state law has forbidden taking pictures and shooting video during the execution process since the early 20th century.

“It's the only window into a live execution that we’ve ever had," Brumfield said of the tapes.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, said that the exemptions cited by DOC in its denial of AP's request to release the tapes follow the pattern of many law enforcement, judicial and corrections agencies.

“There’s a tendency or a knee-jerk response to withhold everything," she said.

"It takes everything off the table, and the public and the advocates and lawmakers are all left in the dark trying to figure out what’s the best way to administer our justice system," she said.

Dieter said that following a string of bungled executions in recent years, some states that allow the death penalty have passed new secrecy laws that prevent the public from obtaining information about executions. He said he favors releasing the recordings.

“Executions have been botched ... you just don’t know what’s going on, and it’s a matter of life and death," Dieter said.