HOUSTON (CN) – To ensure Texas can keep executing prisoners, it does not have to reveal the supplier of its lethal injection drug to a group of Arkansas death-row inmates, a federal judge ruled Tuesday.
The supply of lethal injection drugs has dwindled in recent years, as anti-death penalty advocates have pushed manufacturers to stop supplying them for executions.
Due to the dearth, Texas changed its execution protocol in 2009 from a three-drug cocktail to a single dose of pentobarbital.
Two grams of the sedative, which is used to treat epilepsy and relax patients before surgery, is fatal. Texas kills prisoners with five-gram doses.
The backlash slapped Texas in 2013 when a public information request outed the compounding pharmacy supplying its pentobarbital.
Wilting under a firestorm of media coverage, protests and death threats, the Woodlands Compounding Pharmacy’s owner asked Texas to return the pentobarbital.
Texas now gets the drug from another in-state supplier. Identified in court records as “Pharmacy X,” it stated in a declaration that it too will stop selling pentobarbital to Texas if its identity is revealed.
“Pharmacy X did not and will not supply lethal injection chemicals to any state other than Texas under any circumstances,” the declaration states.
The statement opposed a bid by five Arkansas death-row inmates to get the identity of Texas’ supplier.
In a motion to compel, the inmates said Arkansas’ use of the anesthetic midazolam in its three-drug execution cocktail could subject them to cruel and unusual punishment in violation of the Eighth Amendment.
“Pentobarbital is a more humane alternative to Arkansas’ current use of midazolam, which has been associated with several executions in which inmates suffered prolonged, tortured deaths,” the motion states.
The five Arkansas inmates sought information from Texas for a federal lawsuit they filed challenging their state’s lethal injection protocol after Governor Asa Hutchinson scheduled eight executions for a 10-day period in spring 2017 because the state’s midazolam had an April 30, 2017 expiration date.
A federal judge issued an injunction staying the executions, but the Eighth Circuit lifted the stay.
Arkansas has not executed anyone since April 2017. It has not set death dates for the five inmates who subpoenaed Texas, one of whom has been granted clemency.
U.S. District Judge Sim Lake in Houston granted Texas’ motion to quash the subpoena Tuesday.
Lake said that to succeed on an Eighth Amendment lethal injection challenge, inmates must show a “substantial risk of serious harm” and that there are readily available alternative drugs that will reduce that risk of severe pain, citing U.S. Supreme Court precedent from the 2008 decision in Baze v. Rees.
Lake found the lack of availability of pentobarbital doomed the subpoena, focusing on Texas’ supplier’s statement that it will not provide pentobarbital to any other state.
The Arkansas inmates argued that a protective order would resolve any fears the supplier’s name would get out. But Lake decided the strong possibility its identity would surface despite the protective order would make it hard for Texas to get pentobarbital, creating an undue burden for the state.
“Most persuasively, [the Texas Department of Criminal Justice] argues that the disclosure of information about its supplier of pentobarbital, even with the protective order in place, would end their ability to procure compounded pentobarbital,” the Ronald Reagan appointee wrote in a 34-page order.
The Arkansas inmates are represented by attorneys with the firm Fish and Richardson, who did not immediately respond Wednesday to a request for comment on the order.
Texas state attorneys refused to weigh in because the “order is not final and may be subject to appellate review.”
Texas leads the nation with eight executions so far this year. Seven more Texas inmates are set to die in 2018.