Texas Must Disclose Source of Execution Drug

Texas must disclose the source of a controversial drug used in capital punishments, according to the state attorney general, in a move that could prompt other states to be more transparent about their drug supplies.

The ruling concerns thiopental sodium, a drug used to render inmates unconscious during lethal injections; a nationwide shortage of the anesthetic has caused delays in capital punishment and has made states search far and wide for backup supplies, including purchasing thiopental made overseas.

Criminal-defense lawyers and advocacy groups have pushed states to divulge the steps they have taken to acquire thiopental, citing concerns that inmates could suffer severe pain during executions if states acquire thiopental overseas that is less effective or powerful than the domestic variety.

Texas and other states, meanwhile, have resisted disclosure, claiming that suppliers could suffer retribution from death-penalty opponents if their identities are disclosed. The Texas Department of Criminal Justice, for example, has stated that the debate over the death penalty is similar in its ferocity to the abortion wars and that protests over executions could turn violent.

But the attorney general in Texas, the nation's most active death-penalty state, sided in favor of transparency Thursday, ruling that the state's correctional department must disclose the quantity of execution drugs in its supply and the names of the suppliers. Texas has had 41 executions in the past 2 years, according to the Death Penalty Information Center. Ohio is 2nd with 13 executions.

"This is information the public has a right to know," said Jennifer Moreno, an attorney with a death-penalty legal clinic at the University of California, Berkeley, School of Law, which had filed a request with the Texas Department of Criminal Justice to disclose the information. "We need to know where [thiopental] is coming from to make an assessment about the quality of the drug and whether it will be effective," she said.

The Texas Department of Criminal Journal didn't respond to a request for comment.

Defense lawyers hope other states follow Texas's lead. "Once [thiopental] information is disclosed in one state, it will be harder for other states to keep it secret," said Natasha Minsker, a death-penalty specialist with the American Civil Liberties Union of Northern California, which filed suit this week to seek disclosure of the source of California's supply of thiopental.

The California Department of Corrections and Rehabilitation has declined to divulge sourcing information other than to say that it has obtained thiopental lawfully in the U.S. The department declined to discuss the ACLU suit.

A similar disclosure fight is under way in Arizona. The state has disclosed that it obtained thiopental from Britain, but not the supplier.

"To protect our ability to get these drugs, we want to be sure we protect our sources," said a spokeswoman with the Arizona Attorney General's Office, which used imported thiopental to perform the Oct. 26 execution of Jeffrey Landrigan. The U.S. Supreme Court signed off on the state's use of imported thiopental.

"Arizona should follow Texas's lead on this," said Dale Baich, an Arizona federal public defender who represented Mr. Landrigan and is counsel to other death-row inmates in the state. " The lack of transparency by Arizona continues to be troubling and is not good government," he said.

Tennessee, meanwhile, is at the center of a lawsuit pending in London, which alleges that the state has sought to obtain thiopental overseas to carry out the scheduled January execution of inmate Edmund Zagorski.

The London suit, filed by the human-rights group Reprieve and a London law firm, seeks to block U.K. shipments of thiopental to the U.S. on the grounds that the drug will be used for executions, which are banned in Europe.

Tennessee, like other states, has been somewhat circumspect about its efforts to locate a supply of thiopental. "We have looked at a number of different providers of thiopental sodium in the United States, some of which have sources overseas," said Dorinda Carter, a spokeswoman for the Tennessee Department of Correction, who declined to provide other details.

Source: Wall Street Journal, November 19, 2010