Texas' prison system doesn't have to reveal where it gets its execution drugs, the state attorney general said Thursday, marking a reversal by the state's top prosecutor on an issue being challenged in several death penalty states.
Attorney General Greg Abbott, the Republican nominee for governor in the nation's busiest death penalty state, had rebuffed three similar attempts by the Texas Department of Criminal Justice since 2010. His decision can be appealed to the courts.
The department argues that the compounding pharmacy providing the drug should remain secret in order to protect it from threats of violence. Lawyers for death row inmates say they need its name to verify the drugs' potency and protect inmates from cruel and unusual punishment.
Similar legal fights are ongoing in other death penalty states, including Oklahoma and Missouri, but courts - including the U.S. Supreme Court - have yet to halt an execution based on a state's refusal to reveal its drug supplier. The secrecy argument also was used ahead of a bungled execution last month in Oklahoma, though that inmate's faulty veins, not the execution drug, were cited as the likely culprit.
The issue has put Abbott in a thorny position during an election year in Texas, where the death penalty is like gun rights: Candidates don't get in the way of either. Holding firm would please death penalty opponents, who prison officials say want to target drug suppliers with protests and threats; reversing course goes against his vows of government transparency.
But his Democratic opponent, Wendy Davis, can't easily exploit the issue. Portraying the law-and-order Abbott, who has been attorney general since 2003, as soft on crime would be implausible. She has said the information should be public.
Abbott's latest decision is expected to be appealed, meaning it likely won't take immediate effect.
It stems from an open records request filed ahead of the April executions of serial killer Tommy Lynn Sells and convicted killer Ramiro Hernandez-Llanas. Texas prison officials were using a new supply of pentobarbital, a powerful sedative, but they refused to name the supplier. The inmates' attorneys said that violated the inmates' rights and asked Abbott to step in. They made similar arguments in court, but those appeals were turned down.
The Associated Press also has filed a request for information about the compounding pharmacy under the Texas Public Information Act.
Death penalty states have been scrambling to find new sources of drugs after several drugmakers, including many based in Europe, refused to sell drugs for use in lethal injections. That's led several states to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.
Unlike some states, Texas law doesn't specifically say whether prison officials must disclose where they get their lethal injection drugs.
Abbott rejected the same kind of security concerns in a 2012 opinion, ruling that the benefits of transparent government outweighed the prison system's objection. But in March, his office argued in court that the threatening environment faced by companies supplying execution drugs had worsened.
If Abbott's latest decision is appealed, it could eventually land in the Texas Supreme Court. There's no timetable on such appeals, but they could "take a while," South Texas College of Law professor Charles Rhodes said. He said the courts will have the final say.
Source: Associated Press, May 30, 2014