Texas High Court Keeps Shroud on Execution Drug Suppliers

AUSTIN, Texas (CN) – The Texas Supreme Court ruled Friday the state’s supplier of execution drugs can remain a secret, concluding a disclosure would subject the compounding pharmacy’s employees to risk of physical harm.

The high court overturned a ruling by the Third Court of Appeals in Austin in a 7-0 vote, with Justices Eva Guzman and Jimmy Blacklock abstaining. The all-Republican court conclude the public’s right to information under the Texas Public Information Act is subject to “reasonable limitations when its production may lead to physical harm.”

Attorneys Maurie Levin, Noami Terr and Hilary Sheard sued the Texas Department of Criminal Justice two years ago over fears of botched lethal injection executions and the agency’s subsequent refusal to disclose the supplier pharmacy.

Writing for the court, Justice Paul W. Green said the lower court should have credited “direct evidence and expert affidavits regarding significant risks of physical harm faced by lethal injection suppliers.”

States have been forced to purchase replacement execution drugs from smaller compounding pharmacies in recent years due to successful efforts by anti-death penalty activists to pressure large drug manufacturers to stop their production

Green said the court disagreed with the lower court’s writing-off of a Department of Criminal Justice risk assessment of an email message sent by an unidentified professor to a compounding pharmacy in Oklahoma. Officials deemed it a serious threat, and the high court agrees.

“Were I you I’d at least want to beef up my security now that you’ve been put in the spotlight as a likely supplier and failed to issue a flat denial,” the email message stated. “As the folks in the federal building can tell you, it only takes one fanatic with a truckload of fertilized to make a real dent in business as usual.”

Green said the court did agree with the lower court on another Department of Criminal Justice risk assessment of a blog post identifying a pharmacy in The Woodlands near Houston of supplying execution drugs. Although the blog post called for complaining to the pharmacy and featured a gruesome image of an exploding head, Green said the court “has no reason to believe that the exploding clay head symbolizes anything other than the sentiment that ‘my mind is blown,’ and in ‘I cannot understand how this is happening.’”

Texas Attorney General Ken Paxton applauded the high court’s ruling, saying the decision protects the state’s ability to carry out a death penalty that voters feel is necessary.

“Today’s court ruling ensures anonymity for suppliers of drugs the State of Texas uses for executions by lethal injection,” Paxton said in a written statement. “It is necessary to withhold the identities of these businesses and their employees from public disclosure to ensure their physical safety.”

Levin said she was shocked by the ruling, saying the decision forfeits any claim by the state for having on open government.

“The Texas Supreme Court’s opinion has no legal or factual integrity,” Levin told The Texas Tribune. “It is mind boggling that they reach this conclusion unless it’s taken as political.”

The use of replacement execution drugs by compounding pharmacies became an issue after the botched execution of convicted murderer Clayton Lockett in Oklahoma in 2014 with replacement drugs.

Witnesses say Lockett writhed in apparent agony, clenched his teeth and strained to lift his head after being injected with replacement drugs. The execution chamber was described as a gruesome “bloody mess” by execution team members due to attempts at tapping a second intravenous line in Lockett’s groin. The execution was quickly halted and officials drew the blinds on the execution chamber, but Lockett died 20 minutes after that.

Oklahoma was forced to stop all executions after the 2015 execution of Charles Warner, who reported his body was “on fire” after being injected. A convicted child-killer, Warner twitched from his neck three minutes after being injected and died in 18 minutes. Authorities later discovered the wrong drugs were used to stop his heart.

Oklahoma officials ended the three-year moratorium on executions last year, now using a first-of-its-kind nitrogen gas inhalation method to avoid dealing with compounding pharmacies.

Friday’s ruling comes eight months after a Houston federal judge similarly ruled that Texas does not have to reveal its execution drug supplier to several Arkansas inmates on death row.

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