Open government suffered a defeat Monday when the Texas Senate approved a bill that would keep secret the source of the drug the state uses in lethal injections.
Should it become law, Senate Bill 1697, proposed by Republican state Sen. Joan Huffman of Houston, would culminate a push by state officials to hide the identities of drug suppliers from the public. Huffman, a former prosecutor and state judge, says SB 1697 is needed to protect suppliers of the state’s execution drug from harassment and threats.
Such frequently repeated fears are grounded more in protecting suppliers from controversy than threats while ensuring the state’s ability to carry out the death penalty as it struggles to keep its supply of pentobarbital, the sedative it uses in lethal injections, replenished. There’s no compelling reason why the state should conceal information about its supply of pentobarbital or ignore death row inmates’ constitutional protections.
As attorney general and while campaigning for governor, the office he now holds, Greg Abbott ruled last May that the Texas Department of Criminal Justice did not have to name the source of the state’s execution drug. Abbott’s ruling contradicted three previous rulings he had made on the issue. Where Abbott once had sided with Texas’ open record laws and rejected arguments that disclosing the information would endanger drug suppliers, he suddenly agreed with the Department of Public Safety that revealing a supplier’s name would put it at “substantial threat of physical harm.”
In a report published a couple of months before Abbott’s ruling, The Associated Press found no evidence of any local or state investigation into threats made against The Woodlands Compounding Pharmacy, a Houston-area pharmacy that had recently supplied the state’s pentobarbital. The local sheriff’s office told the AP it had not investigated any threats against the pharmacy; the Department of Public Safety refused to say what investigations were underway.
It is impossible to judge claims of needed secrecy in the absence of reliable information.
A few years ago, 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.
Conflicting laws and court decisions have created confusion about the U.S. Food and Drug Administration’s authority over compounding pharmacies, which became front-page news in 2012 when infections linked to tainted medication bought from a Massachusetts pharmacy killed 53 people. In 2013, more than a dozen patients in Corpus Christi were sickened by contaminated medication obtained from a compounding pharmacy.
Other states 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. Arizona, Ohio and Oklahoma have experienced complications with executions using alternative drugs.
Last month, the U.S. Supreme Court considered an Oklahoma case involving midazolam, a sedative used in several botched executions. Death row inmates in Oklahoma say midazolam violates the Eighth Amendment’s prohibition of cruel and unusual punishment.
During court arguments, Justice Samuel Alito complained that death penalty opponents were waging “a guerrilla war” against the death penalty by working to cut off the supply of drugs used in lethal injections, while Justice Antonin Scalia groused of “the abolitionist movement” rendering death penalty drugs unavailable.
In Texas, such grousing is on the verge of becoming state law that keeps the names of execution drug suppliers secret. Or, to put it another way, as Democratic state Sen. Kirk Watson of Austin noted Monday, hides the name of a state contractor from the public. Businesses seeking to make money from the state should be prepared to play by the state’s transparency rules.
The public has a right to know what is being used in its name, where it comes from and how effective it is — especially when the state is executing a condemned inmate on behalf of its residents.