T he writing of another chapter in Texas’ troubled history with the death penalty is under way, and is being shaped by questions about the state’s supply of lethal injection drugs and the right of the public to know what is being used in its name.
Last month, State District Court Judge Suzanne Covington in Austin delivered a limited victory for transparency and the rights of defendants when she ordered the Texas Department of Criminal Justice to tell the attorneys of two death row inmates the source of the new supply of pentobarbital it plans to use in upcoming lethal injections.
The state had argued secrecy was needed to protect the safety of the maker of the pentobarbital; Covington did not order the state to publicly disclose the supplier’s name.
The next morning a three-judge panel of the 3rd Texas Court of Appeals rightly upheld Covington’s ruling. That afternoon, however, the Texas Supreme Court stopped Covington’s order from taking effect until justices could study the issue further.
Courts and defense attorneys must be able to assess whether the execution drug the state uses meets state and federal standards and doesn’t violate the Eighth Amendment’s ban of cruel and unusual punishment. Further, the Texas attorney general’s office previously has ruled that prison officials must publicly disclose information about the lethal injection drugs they use, as required by Texas’ open record laws.
The arguments in the case should favor disclosure.
This latest death penalty debate began a couple of years ago when major drug manufacturers based in countries that oppose the death penalty stopped selling the drugs Texas used in a three-drug “cocktail” to execute condemned inmates. Texas prison officials were forced to seek an alternative drug protocol and settled on a single dose of pentobarbital bought from a compounding pharmacy, which can make drugs on a small scale to order.
Last month, the Texas Department of Criminal Justice announced it had bought pentobarbital from a new supplier that would allow it to carry out death sentences past April 1, when the state’s existing supply expired. State officials refused to say where they had bought the drugs, however, claiming threats against previous drug providers required the information be kept secret.
Attorneys for death row inmates argue they need the information to properly defend their clients.
Other states that still carry out the death penalty also found their supplies of lethal injection drugs running short when drug companies began refusing to sell them and, like Texas, developed new execution protocols and turned to compounding pharmacies to provide the lethal injection drugs they need.
The purity of drugs from compounding pharmacies is a concern, and Ohio and Oklahoma are two states that have experienced complications with executions using alternative drugs.
Lethal injection became the preferred method of execution in most states after the U.S. Supreme Court lifted its moratorium on the death penalty in 1976 because it was considered more humane than other execution methods.
Given the need to honor constitutional protections and transparency, we see no compelling reason why the state shouldn’t reveal information about its supply of pentobarbital.
— Austin (Texas) American-Statesman