Could “death by lethal injection” come to a crashing halt in Pennsylvania?
It was the week of September 8, 2014 when Governor Tom Corbett (“Governor Corbett”) decided to indefinitely stay the execution of convicted murderer Hubert Lester Michael, Jr. (“Michael”) because of difficulties in carrying out the death penalty. Governor Corbett, a former prosecutor, has signed 35 execution warrants during his reign as Governor. Governor Corbett signed Michael’s death warrant. The very same Governor Corbett who signed Michael’s death warrant is now staying his execution.
In October 1994, Hubert Lester Michael, Jr. pled guilty to the 1993 kidnapping and first-degree murder of 16-year-old Trista Eng. Since then Michael has remained on death row. Michael would be the first prisoner executed in the Keystone State since 1999. Previous Pennsylvania Governors signed two earlier death warrants against Michael in 1996 and 2004, both of which have since expired.
In November 2012, Michael came within hours of execution by lethal injection before receiving a stay of execution from the U.S. Third Circuit Court of Appeals. The stay was later lifted on June 30, 2013. Michael came within days of execution but managed to skirt it once more. Michael was recently scheduled for death by lethal injection on September 22, 2014 but his execution was stayed – again.
Why? Manufacturing issues. The Pennsylvania Department of Corrections (“Department”) didn’t have a stock of lethal chemicals on hand and is still seeking a supplier. Pennsylvania has conducted three executions by lethal injection since 1995, each time using a three-drug protocol that included the sedative sodium thiopental, followed by the paralytic pancuronium bromide, and potassium chloride, which stops the heart. Pennsylvania law calls for a three-drug mixture for execution by lethal injection. However, manufacturers, under pressure from death penalty opponents have put the first drug — a sedative which could be pentobarbital or sodium thiopental — off limits completely. Supplies of the other drugs Pennsylvania policy calls for — pancuronium bromide, a paralyzing drug, and potassium chloride, which stops the heart — are also increasingly scarce.
However, finding completely new drugs isn’t easy. The two-drug method used by Ohio and Arizona has led to prolonged executions in which inmates repeatedly gasped and snorted. In Ohio, the 26-minute spectacle last January led to a yearlong moratorium on executions. Texas and Missouri use a specialty dose of non-FDA regulated pentobarbital, but won’t say where they’ve obtained it, and other states like Ohio have been unable to find similar supplies.
Susan McNaughton (“Ms. McNaughton”), a spokeswoman for the Department, offered no explanation to the Department’s trouble obtaining the drugs. She also declined to comment on speculation among some well-placed observers that the Department has been turned down by at least one supplier, most likely the compounding pharmacy that provided the drugs the last time Michael was scheduled for execution, in November 2012. “We have been and will continue to work to acquire the drugs in accordance with the law,” Ms. McNaughton said via email. “How long that will take, we do not know.”
In the flurry of legal activity surrounding the case this week, Michael’s lawyers have also asked for an injunction against his execution. Michael and three other death row inmates recently filed a lawsuit in Commonwealth Court that challenges the legality of the execution protocol, saying among other things that neither the sedatives nor potassium chloride used are authorized under state law.
The Corrections Department won’t say where it gets its drugs, and Governor Corbett stayed Michael’s execution, he said, because the state needs to obtain them. In a case of conspicuous timing, Governor Corbett’s decision came one day after the American Civil Liberties Union and a group of newspapers filed a motion in federal court seeking information on what drugs the commonwealth will use on Michael and where it plans to get them.
Despite having the fourth-highest death row population in the country, Pennsylvania isn’t terribly good at carrying out the ultimate penalty. A third of the 184 inmates now on death row there received their sentences more than two decades ago, and at least 24 have died of natural causes before their sentences could be carried out.
Protests and lawsuits have led manufacturers to halt production of the very drugs that are used for executing death row inmates by lethal injection. Without these drugs, executions come to a halt. Michael’s execution by lethal injection will come to a halt once again. The real issue is whether Pennsylvania will change the way it does death by lethal injection? If so, how long will it take to find a new method? Will it be humane or will it result in the torture of inmates?
This Article was original published on Law.com on September 18, 2014.
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