City Paper sues to disclose supplier of lethal-injection drug

Philadelphia City Paper joined three other newspapers today in asking a federal judge to unseal court records identifying the supplier of the drugs it will use in the planned lethal injection execution of Hubert Michael, Jr. which could take place as soon as September 22.

Execution chamber at Rockview State Correctional Institution
Courtesy of the Pennsylvania Department of Corrections

Philadelphia City Paper joined three other newspapers today in asking a federal judge to unseal court records identifying the supplier of the drugs it will use in the planned lethal injection execution of Hubert Michael, Jr. which could take place as soon as September 22.

The motion was filed by the American Civil Liberties Union of Pennsylvania on behalf of City Paper, the Guardian US, the Philadelphia Inquirer, and the Pittsburgh Post-Gazette, and seeks to intervene in a class action lawsuit filed by death row inmates against the Pennsylvania Department of Corrections, Chester v. Wetzel, which contends that the state's lethal injection procedure is unconstitutional because it carries the risk of extreme pain and suffering.

In 2012, U.S. Magistrate Judge Martin C. Carlson ordered the DOC to provide plaintiffs with the identity of the supplier of drugs to be used in lethal injections but ordered that all such information be kept confidential.

The motion filed today by the ACLU contends that the identity of the supplier has been revealed in numerous confidential filings, including documents concerning a Food and Drug Administration investigation related to entities involved in the state's lethal injection supply chain. It is impossible, the motion avers, to evaluate the state's death penalty protocol without examining the efficacy of the drugs—which cannot be done without knowing the identity of the supplier. Amongst other claims, death row inmates contend that the pentobarbital that the state will use for executions could fail to anesthetize the inmate as ostensibly intended.

The death penalty remains deeply controversial in the United States and lethal injection, the primary method used in all states with the death penalty and by the federal government and military, has recently come under particularly heavy scrutiny in the wake of reports of botched executions in several states, including Ohio, Oklahoma and Arizona, where prisoners were observed gasping for air for between 20 minutes and nearly two hours before their deaths.

"The information sought by our clients is central to today's debate about capital punishment," said ACLU of Pennsylvania senior staff attorney Mary Catherine Roper in a statement. "If the drugs are not made properly, they will not work properly, and the public should be very concerned about that possibility given the gruesome executions we have heard about in other states."

The reported last words of Michael Lee Wilson, the man executed in Oklahoma, were "I feel my whole body burning."

Pennsylvania, like other states, has recently had to scramble to find drugs for in the face of opposition from manufacturers and European Union export controls. The drug pentobarbital, used to anesthetize condemned prisoners, is therefore only available from compounding pharmacies, which are lightly regulated companies that make drugs to order.

"The identity is protected by statute, and this has been upheld in the courts," says DOC spokesperson Susan McNaughton, apparently referring to a law protecting the confidentiality of "the identity of department employees, department contractors or victims who participate in the administration of an execution."

In a 2012 declaration to the court, DOC Secretary John Wetzel said that "obtaining the drugs needed" to carry out an execution "has become an increasing difficulty as many of the potential sources of the drug are reluctant to become involved in supplying them. Because capital punishment is a highly controversial issue, many fear that their businesses, their personnel and/or family members of their personnel may become the subject of reprisals or other adverse actions by those who oppose the death penalty" and who may seek to interfere with executions in the state.

In March, the state Office of Open Records denied a condemned prisoner's Right-to-Know request for access to the name of the supplier.

But newspapers say that reporters must have access to information about execution drug suppliers to substantively report on whether they are produced to acceptable standards.

"Our readers have a clear First Amendment right to know exactly who is supplying the drugs that the Commonwealth of Pennsylvania intends to use to execute Hubert Michael Jr.," said City Paper Editor Lillian Swanson. "In a democracy, we have a basic right to report on how the criminal-justice system operates. How can that right be denied when the state decides to exercise its harshest form of punishment?"

The Court of Appeals for the Third Circuit has stayed Michael's execution but if the stay is lifted, his killing would be the first in Pennsylvania since infamous Philadelphia serial killer Gary Heidnik was executed in 1999. Michael was convicted in the 1993 kidnap and murder of Trista Eng, 16, of York County, whom he was also accused of having raped.

The DOC contends that public disclosure could make the death penalty difficult to carry out in Pennsylvania.

"It is my belief that if the identities of the supplier are revealed in this litigation, the supplier will become so concerned over the potential for exposure of their identities that they will no longer agree to provide the necessary drugs in the future," Wetzel wrote in a 2012 statement to the court.