DALLAS – 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. However, on Thursday, he sided with state prison officials who said their supplier would be in danger if identified, citing a “threat assessment” that they then declined to release.
His decision, which can be appealed to the courts, came the same day that Missouri Attorney General Chris Koster said his state should consider creating its own laboratory for execution drugs rather than relying on “uneasy cooperation” with outside sources. A state-operated lab would be a first, and it wasn’t immediately clear if Missouri could implement the change without approval from the Legislature.
Missouri and Texas are among death penalty states that contend compounding pharmacies providing them with drugs should remain secret to protect the suppliers from threats of violence. Lawyers for death row inmates say they need the information to verify the drugs’ potency and protect inmates from unconstitutionally cruel and unusual punishment.
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.
Prison officials in Texas have provided little public evidence to support their claim that its execution drug supplier would be in danger if they were identified.
The opinion from Abbott’s office Thursday cites a threat assessment prison officials submitted from the Texas Department of Public Safety that says drug suppliers face “a substantial threat of physical harm.” However, state agencies did not make that threat assessment available publicly Thursday.
The opinion from Abbott’s office said that “in this instance and when analyzing the probability of harm, this office must defer to the representations of DPS, the law enforcement experts charged with assessing threats to public safety.”
Jason Clark, a spokesman for the Texas Department of Criminal Justice, said that agency agreed with the attorney general’s opinion.
Clark referred questions about the threat assessment to the Department of Public Safety, where spokesman Tom Vinger said he did not immediately have access to a copy of the document.
A Houston-area compounding pharmacy was previously identified as the state’s execution supplier. State and local law enforcement said last month that they were not investigating any threats against that pharmacy, although the pharmacy’s owner complained of “constant inquiries from the press, the hate mail and messages.”
In Missouri, Koster said that he believes his state’s Legislature “should remove market-driven participants and pressures from the system and appropriate funds to establish a state-operated, DEA-licensed, laboratory to produce the execution chemicals in our state,” according to a transcript provided by his office.
“As a matter of policy, Missouri should not be reliant on merchants whose identities must be shielded from public view or who can exercise unacceptable leverage over this profound state act,” Koster said.
Earlier this month, The Associated Press and four other news organizations filed a lawsuit against the Missouri Department of Corrections, claiming the state’s refusal to provide information on the execution drug violates the public’s constitutional right to have access to information about the punishment.
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’s latest decision 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.
Abbott’s decision is expected to be appealed and could eventually land in the Texas Supreme Court.
Prominent defense attorney Maurie Levin, called Abbott’s decision “deeply disturbing and frankly quite shocking.”
“Serious questions surround this about-face, including why our attorney general, who once championed transparency, is suddenly now supporting secretive government practices,” Levin said in a written statement.
Graczyk reported from Houston. Associated Press writer Jim Salter in St. Louis contributed to this report.