By Mike Urban And Nicole Brambila
Reading Eagle
READING, Pa. — It’s already been difficult for Pennsylvania to get the chemicals necessary to execute an inmate, and it seems that process will get even harder.
The American Pharmacists Association in late March adopted a policy discouraging participation in executions, saying that taking part in them is contrary to the role of pharmacists as health care providers.
That puts the association in line with the execution policies of other major health care organizations, including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology, the APA pointed out.
Recently, it’s been tough for Pennsylvania and other states to obtain lethal injection chemicals, as American and European companies stopped producing and selling U.S. jails the sedatives sodium pentobarbital and sodium thiopental, which are used to start the execution process.
States, therefore, have looked for alternative chemicals and have tried obtaining them from compounding pharmacies where the drugs would be made from scratch.
But now that the pharmacists association urged compounding pharmacies to stop making the chemicals, and the International Academy of Compounding Pharmacists did likewise in late March, states may have even fewer options.
Death penalty opponents say alternative chemicals being used are unproved and resulted in botched, painful executions in Oklahoma, Arizona and Ohio last year.
And critics say compounding pharmacies are subject to less regulation, again raising the risk for inmates to suffer unnecessarily from being injected with improperly made chemicals.
Gov. Tom Wolf placed a moratorium on executions after taking office this year, nullifying the final death warrants signed by Gov. Tom Corbett.
After Corbett signed those warrants, though, the state Department of Corrections was unable to obtain the drugs necessary for the executions, said department spokeswoman Susan McNaughton.
At least one state struggling to get the chemicals has turned to an alternative method of execution.
On March 23, Utah Gov. Gary Herbert signed a bill into law designating the firing squad as backup to lethal injection. Oklahoma is the other state that authorizes the use of a firing squad, but only if lethal injection and electrocution cannot be used.
Sixteen of the 35 states with a death penalty allow for execution by electrocution, gas chamber, hanging or firing squad, according to the Death Penalty Information Center in Washington.
If Pennsylvania were to adopt a new method of execution, it would have to be done through a change in law by state legislators.
State Rep. Ron Marsico, a Dauphin County Republican who is leading public hearings on the death penalty, said legislators have not yet discussed alternate execution methods.
But if the state continues to hit roadblocks trying to obtain the necessary chemicals, he thinks some legislators will start that discussion.
“I’m sure there are some that would want to consider it,” said Marsico, who is chairman of the House Judiciary Committee.
Rob Dunham, executive director of the Death Penalty Information Center and a former Pennsylvania public defender, said he does not anticipate legislatures will follow Utah’s lead and rush to adopt alternative methods. The way Dunham sees it, the shroud of secrecy around the lethal cocktails is more problematic.
“The death penalty is a public policy,” Dunham said. “For a public policy to be meaningful and effective you have to have access to public information.”
That lack of transparency has been challenged in one portion of a federal lawsuit over the legality of Pennsylvania’s death penalty.
That part of the suit was filed by several news organizations and the American Civil Liberties Union, which want the state to be forced to unseal documents disclosing who would supply the lethal injection drugs used in an execution.
Federal U.S. District Court Judge Yvette Kane of the Middle District of Pennsylvania has not ruled on that portion of the case. But she granted a summary judgment on the remainder of the case in February, and it mostly favored the state.
The suit is a class-action complaint filed on behalf of Pennsylvania’s death row inmates, alleging that the state’s lethal injection protocol poses an unnecessary risk that inmates will suffer pain. That would violate the federal rule against cruel and unusual punishment and the guarantee of due process, the suit states.
But Kane ruled that the state has sufficient safeguards in place and that the plaintiffs did not establish the protocol would cause serious illness or needless suffering.
Philadelphia attorney David Rudovsky represented the inmates and said he won’t appeal Kane’s ruling.
The state Department of Corrections did not comment.
Berks County District Attorney John T. Adams said court rulings throughout the country have ruled in favor of the lethal injection process used by states, and Kane’s decision puts Pennsylvania among them.
“Pennsylvania’s protocol is meeting the constitutional criteria,” he said.
Rudovsky is also representing Pennsylvania’s death row inmates in a state class-action suit challenging the plan to use chemicals other than those mentioned in state law for lethal injections.