march 19, 2014
Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month.
But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with the Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.
The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general’s office, which has said the state’s open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.
“We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process,” said Texas Department of Criminal Justice spokesman Jason Clark.
The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to US corrections agencies because they oppose the death penalty.
Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. The announcement comes a day after Oklahoma postponed two executions for a month because it had run out of its own supply of drugs.
Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the US Food and Drug Administration as more conventional pharmacies.
Texas prison records examined by the AP show the state also has a supply of the painkiller hydromorphone and sedative midazolam, the drugs chosen earlier this year by Ohio to conduct its executions when they lost access to pentobarbital.
But in their first use in January, Ohio inmate Dennis McGuire made gasp-like snoring sounds for several minutes during his 26-minute execution. His family later sued, alleging their use was cruel and inhuman.
Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled 3 April execution would make him the first to be put to death with Texas’ new drug supply, said the issue could become fodder for legal attempts to delay his client’s sentence. “This might be good stuff,” he said. “And the roads are getting very short here.”
But Richard Dieter, executive director of the Washington DC-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment. “There are a lot of drugs, and Texas can be creative in finding some,” he said.
Texas’ current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire 1 April. The state has scheduled executions for six inmates, including one set for Wednesday evening and another next week.
Those two will be put to death with the previous stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said. The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.
Sixteen convicted killers were executed in Texas last year, more than in any other state. Two inmates already have been executed this year, bringing the total to 510 since capital punishment in Texas resumed in 1982. The total accounts for nearly one-third of all the executions in the US since a 1976 supreme court ruling allowed capital punishment to resume.
The AP filed an open records request in February seeking details about the drugs Texas planned to use to carry out executions. The AP received the documents on Tuesday, but in following up with Clark about their contents, he said they were moot as the state had secured the new batch of pentobarbital.
Clark then refused to provide more details about the drugs, including how much the state has purchased and from where, and when the new drugs expire. He also refused to say whether the drugs would need to be returned if the attorney general’s office rules the provider must be disclosed. “I’m unable to discuss any of the specifics. Other states have kept that information confidential,” he said.
Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns.
Clark, in refusing AP’s request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents. It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.
Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas attorney general Greg Abbott’s office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk.
In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state’s suppliers, dismissing the same kind of security concerns raised this week.
“Upon review, while we acknowledge the department’s concerns, we find you have not established disclosure of the responsive information would create a substantial threat of physical harm to any individual,” assistant attorney general Sean Opperman wrote.
Clark said the prison agency planned to ask Abbott to reconsider the issue. “We’re not in conflict with the law,” Clark said. “We plan to seek an AG’s opinion, which is appropriate in a situation like this, and the AG’s office will determine whether it’s releasable.”
When contacted by the AP and made aware of prisons department’s refusal to name the drug supplier, Abbott spokeswoman Lauren Bean said the attorney general would consider the request once it’s received.