For years, the state of Texas has fought to keep the identity of an execution drug supplier a secret. On Wednesday, the Texas Supreme Court will hear arguments over whether that company’s identity should finally be revealed.
Three lawyers who represent death row inmates are seeking to name a pharmacy that supplied pentobarbital — the sole drug used in Texas executions — in 2014, at a time when multiple states had “botched”executions with new drug combinations and struggled to find lethal doses. The Texas prison system has claimed before lower courts that the information should be withheld from public disclosure because it would endanger the supplier. A district and an appellate court both sided with the death penalty lawyers, rejecting the claim that disclosure would put the company in danger.
Originally, the Texas Supreme Court declined to hear the appeal from the Texas Department of Criminal Justice, indicating that the state soon would be forced to reveal the pharmacy’s identity. But the justices changed their minds after the state filed a motion for a rehearing and focused on a broader claim: that naming the pharmacy could cut off the state’s supply of drugs and end the death penalty in Texas, which has executed by far more inmates than any other state.
“This lawsuit is a collateral attack on the death penalty,” former Texas Solicitor General Scott Keller wrote in his last-shot petition in July. “If allowed to stand, the court of appeals’ decision directs the public unmasking of a supplier of Texas’s lethal-injection drugs, which jeopardizes the State’s ability to carry out the death penalty.”
The death penalty lawyers scoffed at the notion, saying, “The sky is not falling,” and emphasizing that any Supreme Court order would only pertain to the 2014 source; a state shield law passed in 2015 keeps secret any suppliers after that, and it’s unclear whether the supplier has changed.
The legal fight over the 2014 supplier’s identity began five years ago, when then-Attorney General Greg Abbott, who in three previous rulings had said the information was public, reversed course and said the state could withhold that information because the company would face “real harm” from disclosure. The state has repeatedly cited a threat assessment by the Texas Department of Public Safety and hate mail received by a previously named pharmacy.
The lawyers then took the case to the courts, where they have largely won. A Travis County district court and a regional appellate court both ruled in favor of naming the supplier, saying the “threat of physical harm” standard for withholding public information does not apply to threats to privacy or the impact on the state’s supply of drugs.
The death penalty lawyers said they hope to discuss a pharmacy recently named by BuzzFeed, according to a letter filed this month with the court. The news outlet named Houston’s Greenpark Compounding Pharmacy as an execution drug supplier for Texas in November.
“After the news coverage, there was a day of protest, described by the Houston Chronicle as ‘peaceful’ and where the protesters ‘stayed well-behaved,’” attorney Philip Durst, who represents the death penalty attorneys, wrote. “This, of course, both demonstrates that violence will not erupt and that any hoopla has already died down.”
The state argued that the recent news articles should be excluded from the record, pointing out that Greenpark has denied producing the drug and its role as a supplier is unconfirmed by the Texas Department of Criminal Justice.
“These articles thus say nothing about what has happened to a confirmed supplier of Texas’s lethal-injection drugs after being publicly identified,” Texas Solicitor General Kyle Hawkins wrote.