AUSTIN, Texas (AP) — A judge ordered Texas prison officials Thursday to disclose the supplier of a new batch of lethal injection drugs to attorneys for two inmates set to be executed next month, but she stopped short of revealing the identity of the manufacturer to the public.
The ruling by state District Judge Suzanne Covington came after the Texas Department of Criminal Justice argued that threats against execution suppliers are escalating. The agency recently obtained a threat assessment from law enforcement officers, and pictures on the Internet suggest physical harm against pharmacists making the drugs, Assistant Attorney General Nicole Bunker-Henderson said.
State prison officials have lost previous attempts to keep information about its execution drug supplier confidential.
“The circumstances have changed from 2012. We can show there’s evidence out there that there has been a significant, real concrete threat to similarly situated pharmacists,” Bunker-Henderson said.
Phil Durst, one of the attorneys trying to make the suppliers known, said they had a right to know where the drugs originated.
“Is it eBay? Did they have some good customer service rankings? We have no idea where it’s from or how it was made,” Durst said. “Maybe this stuff is A-OK. Maybe this stuff was laced with strychnine off the street. We don’t know, and they need to know before they inflict the ultimate penalty.”
Texas prisons spokesman Jason Clark said the agency was “disappointed” in the ruling and would appeal.
The prison agency lost its previous supplier last year after the compound pharmacy’s name was made public and it received threats. Prison officials contend the identity of the new drug source should be withheld to protect the new supplier.
Attorneys for two death row inmates filed the lawsuit that led to Thursday’s abruptly scheduled hearing, contending that prisoners cannot evaluate the risk that could result in them being subjected to unconstitutionally cruel pain.
Later Thursday, Texas executed its fourth inmate of the year, using the last of the pentobarbital supplied by a different compounding pharmacy last year.
Attorneys for convicted killers Tommy Lynn Sells and Ramiro Hernandez-Llanas filed a lawsuit demanding the Texas Department of Criminal Justice name the provider of the new supply of pentobarbital, the sedative the state uses for lethal injections.
Sells and Hernandez-Llanas are scheduled to die April 3 and 9 respectively. Sells was condemned for slashing two girls’ throats in 1999 at a home near Del Rio; one girl died. Hernandez-Llanas was condemned for the 1997 beating death of a man who owned a ranch where Hernandez worked near Kerrville.
Covington’s ruling doesn’t affect the execution dates, but once the source of the drugs are given to their attorneys, a delay could be sought based on questions about the supplier. State attorneys told Covington the drugs have been tested and fall within acceptable ranges for potency.
The current supply of pentobarbital used for lethal injections in Texas expires April 1. Prison officials said last week they have a new supply but cited security reasons for declining to disclose the supplier’s name.
The office of Texas Attorney General Greg Abbott has previously concluded the information should be public.
But Abbott’s office is also obligated to represent the state in court. That had Bunker-Henderson defending the prison agency that her office has rebuffed at least three times since 2010 over similar attempts to keep execution drug information exempt from state open-records laws.
Most recent was in 2012, when Abbott’s office wrote that prison officials failed to show how disclosing information about suppliers “create a substantial threat of physical harm to any individual.”
But Bunker-Henderson told Covington those previous rulings were informal and shouldn’t be applied to other cases.
On Wednesday, an Oklahoma judge voided that state’s execution law, agreeing with inmates that a “veil of secrecy” preventing them from seeking information about the drugs used in lethal injections violated their rights under the state constitution. Oklahoma officials plan to appeal.
Oklahoma is among the states that have promised companies confidentiality if they will provide the sedatives or paralyzing agents used to execute condemned prisoners, and went beyond that to prevent information from being revealed even in court.
Jen Moreno, a staff attorney at U.C. Berkeley School of Law’s Death Penalty Clinic, said the decision in the Oklahoma case “shows there is a growing concern by courts that states are keeping information secret.”
Arkansas and Missouri keep execution information secret.