In Orwellian move, NC State Archives blocks access to death penalty photo

More than 190 people were executed in North Carolina's gas chamber.
More than 190 people were executed in North Carolina's gas chamber. N&O FILE PHOTO

In George Orwell’s novel “1984,” the luckless Winston Smith labors in a Ministry of Truth office where he “re-creates” the past by removing or changing historical documents to reflect Big Brother’s political demands.

Winston doesn’t know whether he’s changing a fact or a fallacy another worker has already introduced. He erases some people entirely after the Party executes them.

I couldn’t help but think of Smith’s grim legacy recently. Last month, I requested from the North Carolina State Archives a photograph of the first inmate executed by lethal gas. I’d first seen Allen Foster’s mug shot in a 2004 edition of the state’s authorized history journal and wanted a high-resolution copy.

But the Archives – the state agency in charge of safeguarding the primary sources of our history – refused my request.

I dug deeper. I discovered that the Archives is blocking access to all historical material related to executions. This is especially important at a time when we as a state and a nation are engaged in a vital discussion about the death penalty. By blocking access to information, the state is harming education, stifling debate and undermining free speech.

The photo I sought is 80 years old. Three conjoined panels depict 20-year-old Foster in custody in 1936. Foster allegedly robbed and raped a Hoke County woman in 1935. At the time, rape was a capital crime. Foster’s mother unsuccessfully pleaded with Gov. J.C.B. Ehringhaus to spare his life. On Jan. 24, 1936, the state executed Foster, an African-American, the first in the state to die by lethal gas.

At the time, officials considered gas more humane than hanging. Yet Foster died horribly. The January cold prevented the gas from working properly. As sociologist Trina Seitz described in the North Carolina Historical Review, Foster gasped for three minutes before losing consciousness. Then “he convulsed wildly.” In all, it took him 11 minutes to die.

Request denied

In her article, Seitz reproduced the photo I wanted, which she legally obtained from the archives more than a decade ago.

I requested the photo as part of work I was doing on a national exhibit on mass incarceration, coordinated by the Humanities Action Lab at New York’s New School. Along with 20 other universities, 16 Duke students, a colleague and I were preparing our contribution, a history of the death penalty in North Carolina. The students read Seitz’s article as well as a UNC-sponsored site that reproduces the photo from the NCHR.

Imagine my surprise when the state archivist replied that current interpretation of law prevented access. I reached out to other researchers and learned that the state archivist is denying access to all historical death penalty records.

Among the statutes she cites are GS 148-74 and GS 148-76, in part meant to protect prisoner privacy, a worthy goal for living inmates and their families. Specifically, GS 148-74 requires the state to “minimize duplication and maximize effective use of ... records and materials.” My students’ project achieves both goals. It’s an overreach to apply this to a case eight decades in the past.

GS 148-76 is meant to empower the Department of Public Safety to keep records that enhance the public’s safety, irrelevant in the case of a man executed before World War II.

Worthy of Orwell

Claims of confidentiality are equally spurious. Foster’s mug shot was public at the time of his execution as is the mug shot of every inmate in prison today. Just go the offender lookup page on the prison system’s website, or peruse The Slammer at a gas station.

But it’s not just one photo or a certain category of records. Suppressing historical documents on the death penalty is part of a wider effort by our current legislature to restrict or deny public access to information, an effort worthy of Big Brother. One new law shields the identity of companies that sell death penalty drugs to North Carolina. Another, which took effect Jan. 1, aims to silence whistle-blowers. Anyone who secretly gathers information in order to uncover and correct abuses can be sued by business owners for bad publicity and be required to pay a fine.

Newspapers like this one have and will continue to insist that the state release records that we as citizens have a right to. But why should we as citizens be content with a system that forces us to fight for every paper – or photo?

Foster’s execution and his photograph are our history. To deny access is tantamount to sending the past down the memory hole for destruction. And the only point of that is to suppress what should be robust and informed debate.

Robin Kirk co-directs the Duke Human Rights Center at the Franklin Humanities Institute at Duke University.