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Lawsuits, scarcity of required drugs preventing Pennsylvania from carrying out executions

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HARRISBURG, Pennsylvania — Gov. Tom Corbett's decision this week to indefinitely delay the execution of a convicted murderer illustrated some of the practical and legal challenges the state faces these days in carrying out the death penalty.

Corbett issued a temporary, indefinite reprieve, meaning Hubert Lester Michael Jr.'s death by lethal injection for the murder of a teen girl more than 20 years ago won't go forward as scheduled Sept. 22.

The 3rd U.S. Circuit Court of Appeals had already issued a stay of its own to give it time to consider whether the full court should reconsider a ruling by three of its members that would have cleared the way for Michael to be put to death.

In the flurry of legal activity surrounding the case this week, Michael's lawyers asked for an injunction against his execution, the latest move in a long-running challenge to the state's execution protocol. The Corrections Department revised the procedure two years ago, and a group of inmates has sued, saying the new policy conflicts with the 1990 state law that determined how executions should be performed.

Pennsylvania law calls for a three-drug mixture, but manufacturers under pressure from death penalty opponents have put the first drug — a sedative which could be pentobarbital or sodium thiopental — off limits completely.

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.

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.

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 are authorized under state law.

The Corrections Department won't say where it gets its drugs, and Corbett halted plans for Michael's execution, he said, because the state needs to obtain them. Four media organizations asked a federal judge this week to order that the source of the drugs be disclosed.

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.

There are currently 184 people on Pennsylvania's death row, including three women, and the only three people Pennsylvania has executed since the death penalty was reinstated in the 1970s — the most recent in 1999— had given up on their own appeals.

Earlier this month, Pennsylvania Chief Justice Ronald Castille issued a lengthy opinion that was highly critical of the Philadelphia-based Federal Community Defender Office, which represents many of the state's condemned inmates.

He blamed them for endless appeals and delays, saying they were attempting to do through the courts what they could not achieve in the political arena.

But others say Pennsylvania's lack of executions should be attributed to shortcomings in the state's court system, particularly when it comes to providing defendants with adequate representation at trial.

"Appeals attorneys have many issues to work with," said ACLU lobbyist Andy Hoover, an anti-death penalty activist. "And the reason is that Pennsylvania's system of public defense is really lacking and has been for a long time."

Corbett, a former prosecutor, has signed 35 execution warrants, but he's trailing badly in the polls as he seeks re-election. The Democratic candidate, Tom Wolf, says he won't sign the warrants and will issue temporary reprieves while the state studies the issue of wrongful convictions.


Mark Scolforo covers state government for The Associated Press in Harrisburg. Contact him at mscolforo@ap.org, or follow on Twitter: @houseofbuddy.

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