On Friday, Gov. Tom Corbett announced that he is postposing Michael’s September 22 execution because the department doesn’t have a stock of lethal chemicals on hand and is still seeking a supplier. Michael, who is rapidly approaching the end of his appeals, would be the first prisoner executed in the Keystone State since 1999, when a judge ruled that condemned torture-killer Gary Heidnik’s desire to end his own life could not be used as evidence of his mental incapacity.
The implications for Pennsylvania are great: The last time the commonwealth executed an inmate who hadn’t voluntarily waived his right to appeal, John F. Kennedy was president. Corbett is eager to break that streak. He’s signed 35 death warrants during his tenure in office, all of which have been stayed. And he has gone on record saying he is “committed to carrying out the sentence” against Michael.
Susan McNaughton, a spokeswoman for the Pennsylvania Department of Corrections, offered no explanation to The Daily Beast for 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,” McNaughton said via email. “How long that will take, we do not know.”
In a case of conspicuous timing, the governor’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. The petitioners are piggybacking on a class action suit filed in 2006, Chester v. Wetzel, that challenges Pennsylvania’s lethal injection protocol as unconstitutional because it lacks adequate protections against needless pain and suffering.
The most recent filing in the case seeks to unseal documents related to the Department of Corrections’ last lethal drug acquisition and lay the groundwork for similar transparency in all future executions.
Mary Catherine Roper, an ACLU attorney representing the newspapers, said the execution postponement caught her and her colleagues off guard.
“Nobody is surprised that it’s getting harder to locate these drugs,” she said, “but no one at the Department of Corrections had indicated publicly that they hadn’t been able to secure them.”
The department has not revealed which drug or drugs it is having trouble purchasing, but it’s a safe bet that at least one of them is the first drug administered during an execution, a sedative that is designed to render the condemned unconscious during the procedure.
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.
“I doubt that any governor would want his or her legacy to be a torture session like those we’ve had recently in states like Oklahoma and Arizona.”
For all intents and purposes, sodium thiopental is now unavailable in the United States. In 2011 the European Union banned its export for use in capital punishment, and the sole U.S. manufacturer of the drug chose to stop making it rather than promise authorities in Italy—the site of a new manufacturing facility—that it wouldn’t be used in executions.
The Pennsylvania Department of Corrections amended its protocol accordingly to allow for a second sedative, pentobarbital—sold under the brand name Nembutal—to be used. But Lundbeck, the Danish maker of Nembutal, no longer sells the drug to U.S. prisons. A shortage of pentobarbital has forced some states to improvise, often with gruesome consequences.