By Paula Reed Ward
Pittsburgh Post-Gazette
PITTSBURGH — Four newspapers filed a motion Thursday seeking to unseal documents filed in the federal courts related to the supply chain for drugs that could be used to execute a Pennsylvania man later this month.
The American Civil Liberties Union filed the motion to intervene and emergency motion to unseal on behalf of the Pittsburgh Post-Gazette, The Philadelphia Inquirer, Philadelphia City Paper and Guardian U.S. in U.S. District Court in Harrisburg.
Hubert Michael, 58, is scheduled to be executed on Sept. 22. He was sentenced to death for the 1993 kidnapping and first-degree murder of a 16-year-old York County girl.
Gov. Tom Corbett issued a death warrant for Michael in July. That is currently stayed by the 3rd U.S. Circuit Court of Appeal pending a decision for reargument on an issue related to his case. But according to a motion filed on Michael’s behalf on Tuesday, there is no way to know if the stay will continue past the date set for execution.
“In light of the recent string of horrifically botched executions, the public is entitled to know how the state obtained the drugs it plans to use to carry out executions here in Pennsylvania,” said Reggie Shuford, executive director of the ACLU of Pennsylvania.
On Tuesday, an attorney for Michael asked the Pennsylvania Commonwealth Court for a preliminary injunction halting the execution, arguing that the state Department of Corrections isn’t following the law as written by the legislature regarding the drug cocktail required to complete the lethal injection.
The 1990 law required the first drug to be given in the combination to be an ultra-short-acting barbiturate. However, there are no longer any domestic suppliers of that drug, and the DOC in 2012 wrote a new protocol.
In the motion filed in federal court Thursday, attorneys wrote that the first drug to be used in the cocktail is pentobarbital.
According to the filing, the brand name is Nembutal, and the manufacturer of the drug has prohibited its sale in the U.S. for use in executions.
Because of that, the motion goes on, the Department of Corrections in November 2012 contracted with a compounding pharmacy to make all the drugs needed for an execution on special order. The motion also notes that even though two of the three drugs in the execution protocol are commercially available, the DOC chooses to have all three specially made by a compounding pharmacy.
According to an ACLU news release, “the use of compounded drugs in executions raises concerns, in part because compounding pharmacies are less regulated than pharmaceutical manufacturers. Questions have been raised about the quality and reliability of the compounded execution drugs and whether the pharmacies have legally obtained the active ingredients used.”
“Given the string of problematic lethal injection executions around the country and the allegations already raised in this litigation concerning the reliability of the supplier chosen by the DOC, [the newspapers] believe that the public interest in a full examination of the DOC’s planned execution procedures outweighs the DOC’s stated interest in maintaining the secrecy of its suppliers.”
The DOC has argued that by making public its suppliers, there is a chance those companies would no longer be willing to provide the drugs.
But in the motion, the newspapers argue the DOC bears the burden of justifying the sealing of the documents containing the identity of the chosen supplier.
Under the law, there is a “strong presumption” of public access to court documents, and the filing argues that the DOC must show an “overwhelming governmental interest” in keeping them sealed.
In recent months, there have been several botched executions across the country. If it were to occur, Michael’s execution would be the first in Pennsylvania since 1999.