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Pennsylvania House Votes to Expand Death Penalty as International Controversy Mounts

Pennsylvania's moves in the opposite direction of the prevailing winds of reform.
 
 
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On April 6, Sister Helen Prejean, author of the book "Dead Man Walking" and the inspiration for the 1995 film of the same name starring Susan Sarandon as a Catholic nun counseling a condemned prisoner, stood before a packed crowd at Chestnut Hill College in Philadelphia to tell her story and urge attendees -- especially young people -- to join efforts to end capital punishment in Pennsylvania.

"As long as we are not active, as long as we don't raise our voice, as long as we don't resist, we too are responsible," said the fiery, 71 year-old abolitionist.

Her talk couldn't have come at a more dubious time for the death penalty in America.

Since Governor Pat Quinn formally abolished capital punishment in Illinois in March, legislators in no less than half-a-dozen states have introduced bills to repeal the death penalty and replace it with life without parole. States where abolitionist legislation is being considered include three of the death penalty's "big four" -- Texas, Florida and Pennsylvania, which together account for nearly a third of the nation's condemned inmates. (California, which leads the nation with 711 prisoners awaiting execution, has no such legislation pending).

Separately, an international scandal involving a key ingredient used to execute inmates has focused world attention on a U.S. practice that remains out of step with much of the developed world.

Earlier this year Illinois-based Hospira, the only American-based manufacturer of the barbiturate sodium thiopental, chose to stop making it rather than promise authorities in Italy - the site of its new manufacturing facility - that its drug wouldn't be used for capital punishment. Until recently sodium thiopental, sold under the brand name Pentothal, was a primary ingredient in the lethal injection cocktails of 34 states.

Hospira was already facing a shortage of key components used in the manufacture of the drug. The decision to cease production sparked a nationwide shortage of sodium thiopental and forced some states to seek the drug from less reputable overseas suppliers, sparking controversy and in some cases legal intervention.

On March 15 the Drug Enforcement Agency seized Georgia's entire stock of sodium thiopental less than a month after attorneys for inmate Andrew Grant DeYoung notified Attorney General Eric Holder that the Georgia Department of Corrections had imported a quantity of the drug without proper registration from the United Kingdom last July. Since December 2011 Britain has enforced export controls on sodium thiopental.

According to records obtained by attorney John Bentivoglio, the drug came from a small, mom-and-pop wholesaler called Dream Pharma, which ran its operations out of a rented space in the back of a driving school in Acton.

Georgia had already executed two men using the drug, both of whom kept their eyes open during the process. An analysis by the UK-based death penalty abolitionist group Reprieve suggests the quality of the sodium thiopental may have been compromised by poor storage, and both inmates were likely partially conscious throughout the execution process -- a grueling experience according to anesthesiologists .

"At last someone is paying attention to the shenanigans that have been going on with the fly-by-night company exporting large quantities of execution drugs from Britain," said Reprieve's Director Clive Stafford Smith, commenting on the DEA's action.

Kentucky and Tennessee responded to the seizure by turning over their entire stocks of sodium thiopental to federal authorities, but at least five other states are reported to have acquired the drug overseas. Last week The Times of India revealed that at least two states, Nebraska and South Dakota, were using a Mumbai-based company as their supplier; on April 6, the company, Kayem Pharmaceutical, said it would no longer ship the drug to the U.S.

Pennsylvania - where more than 200 condemned inmates sit on death row -- has so far refrained from entering the debate, and no published reports exist outlining its plans as sodium thiopental becomes less available.

Susan McNaughton, communications director at the Pennsylvania Department of Corrections, declined to comment on the supplier of the state's sodium thiopental, or if it maintained a stock of the drug, but said the DOC is "reviewing its options" as to how the issue surrounding the availability of the drug will affect the execution process in Pennsylvania, if at all.

"We have no reason to think that we are not prepared to carry out executions," she said.

A request under Pennsylvania's Right to Know Law for information on who supplies Pennsylvania's execution drugs, whether or not they are stockpiled and how often the stocks are rotated was pending at press time.

The fact that the state hasn't hosted an execution in more than a decade certainly makes the situation seem less than urgent. However, according to the drug's guidelines, the average shelf life for sodium thiopental is four years, meaning the state would need to rotate stocks at least that frequently, or would need to order it before an execution proceeds.

Seeking to circumvent the controversy, some prisons have decided to abandon sodium thiopental altogether. Last month Ohio became the first state to execute an inmate with a single dose of pentobarbital - a short-acting barbiturate commonly used to euthanize animals -- while several others states have said they will begin using pentobarbital in place of sodium thiopental as one of three execution drugs. That decision is already raising challenges from defense attorneys who say the new drug is unproven and that some states, Texas for instance, have not followed the correct protocol for making such a change.

Meanwhile, many European governments have stepped up efforts to ensure they are not complicit in a practice they oppose. On April 1, Germany petitioned the European Union to consider banning sodium thiopental for exportation to countries where it could be used for execution, and legislators in the UK are lobbying the government to add the other two drugs commonly used in lethal injections -- potassium chloride and pancuronium bromide -- to the country's list of banned exports. Given European sentiment concerning capital punishment, pentobarbital may one day face the same fate. With as much as 40 percent of pharmaceuticals now being made outside the United States, the implications could be reaching.

Death penalty opponents say the international outcry underscores just how isolated the U.S. is from its allies on the issue of capital punishment.

"This is a sign that it's difficult to do the business of killing people when there are others out there who don't want to participate," said Andy Hoover, Legislative Director of the Pennsylvania American Civil Liberties Union.

PA Legislators push alternate death penalty bills

The day before Sister Prejean visited Chestnut Hill, the Pennsylvania House of Representatives unanimously voted to approve a bill that -- if it passes the GOP-controlled Senate -- could see more inmates sent to death row in the Keystone State.

The legislation -- House Bill 317 -- adds two new aggravating factors to the 18 already considered when determining if the death penalty applies to defendants in murder cases, making capital punishment applicable for defendants that commit sexually violent murder while they are registered sex offenders, as well as those who target the elderly and infirm.

"The House is just completely out of step with reality," said Hoover, commenting on the bill. "They are refusing to accept that this is a broken program. The death penalty was made to be used in limited circumstances, but by adding a category for people that are infirm, which lacks definition, the House is expanding it to where it can be applied to most homicides."

The bill's sponsor, Rep. Kerry Benninghoff, a Republican representing parts of Centre and Mifflin Counties, didn't respond to calls and e-mails seeking comment, but in a statement he said the bill is about "justice, protecting law-abiding citizens and keeping dangerous people off the streets."

Two Democratic senators -- Allegheny County progressive Jim Ferlo, and Daylin Leach -- who represents parts of Delaware and Montgomery Counties -- are seeking to end capital punishment in the Commonwealth.

According to Leach, who in February introduced a bill to place a statewide moratorium on executions, the cost of putting people on Death Row where they'll sit for years through endless appeals just doesn't make any sense given the budget crisis currently facing the state. Studies show it costs more than twice as much in appeals, administration and housing to put an inmate to death than to house him or her for the rest of their lives, while polls show waning support across the nation for the death penalty. The most recent numbers in Pennsylvania show that less than half of respondents favor the death penalty when given the alternative option if life without parole.

"The Death Penalty is just another government program that is too expensive and just not working," said Leach, in an appeal to his conservative colleagues.

Since Pennsylvania reinstated the death penalty in 1977, only three executions have been carried out (the last a dozen years ago), and in all three cases the defendants waved their appeals. It's been nearly half a century since the state executed someone who didn't ask to be. Since then at least 20 condemned inmates have died of natural causes.

Nonetheless, Pennsylvania governors from both parties continue to sign dozens of death warrants, making Pennsylvania's Death Row the fourth largest in the nation. Governor Ed Rendell, a Democrat, signed 119 death warrants during his tenure; and newly minted Republican Governor Tom Corbett has already signed four since taking office in January. There are currently 222 inmates awaiting their execution date, more than half of them Black men from Philadelphia County.

Philadelphia District Attorney Seth Williams supports the death penalty but has said he will use it more conservatively than his predecessor Lynn Abraham, who gained a reputation for aggressively pursuing capital murder charges.

According to Tasha Jamerson, a spokesperson for Williams, the DA's office has filed 11 capital cases since Williams took office, and Jamerson reports a "steady decrease in capital prosecutions since 2003."

The American Bar Association has a theory as to why the Keystone State carries out so few executions despite having so many condemned: Pennsylvania is the only state in the nation that provides no post-conviction financial support for defense appeals, meaning defendants are often required to turn to county services and the aid of less-than-able court-appointed attorneys. As a result, cases are often wildly mismanaged, and regularly overturned on appeal at the expense of taxpayers.

Since 1980, more than 200 death sentences in Pennsylvania have been overturned by federal and state courts, and nearly as many death convictions are vacated in Pennsylvania each year as are handed down.

As states across the country rethink their stance on capital punishment, it's fallen to a handful of "true believers" -like Florida, Texas and Ohio to conduct the majority of America's executions. How long Pennsylvania will continue to count itself among this group remains to be seen, but advocates are confident it's not a matter of if, but when the state will abolish capital punishment.

"It might not be on the first try, it might not be on the second try, but if people keep the pressure on eventually we can change this," said Prejean. "Politicians do eventually listen to the people."

A coalition of 15 statewide abolitionist groups, including Pennsylvanians for Alternatives to the Death Penalty (PADP), The Interfaith Alliance of Pennsylvania, Murder Victims' Families for Human Rights, and the ACLU of Pennsylvania is working hard to see that that they do.

"I think with many changes, it's a question of chipping away, little by little and day by day," said Kathleen Lucas, executive director for PADP. "We will get there. Once our legislators see how broken the system is, I believe that they'll do the right thing. The evidence is on our side."

Christopher Moraff is a writer and photographer and a frequent contributor to the magazines The American Prospect and In These Times, where he serves on the Board of Editors. He is a correspondent for The Philadelphia Tribune and is associate editor of the finance magazine the Monitor, where he covers corporate fraud.
 
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