Execution Drugs to be State Secret Under Legislation Headed to Governor

Proponents of a bill shielding execution drug manufacturers from public scrutiny rely on flimsy “threats” as justification



Manufacturers of execution drugs will be shielded from public scrutiny, helping to keep Texas’ capital punishment machine in working order, under a bill headed to the governor’s office. On Tuesday, Senate Bill 1697 cleared its final hurdle with a favorable vote in the House. If signed into law by the governor, as expected, the bill will keep information about anyone who participates in executions or supplies execution drugs confidential.

“This bill is about trying to protect innocent people who are just doing their job,” said Rep. John Smithee (R-Amarillo), the bill’s House sponsor, on Tuesday.

That rationale was voiced numerous times by supporters as the bill moved through both chambers, but there’s little evidence that Texas Department of Criminal Justice (TDCJ) personnel or suppliers of execution drugs are at risk.

The names of those involved in carrying out executions have never been revealed by TDCJ. The real issue is whether citizens should be able to access information about lethal-injection drugs. Until last year, the identify of lethal-injection drug suppliers could be acquired through a public information request. In May 2014, then-Attorney General Greg Abbott ruled that TDCJ could keep the information secret. The ruling came after the Department of Public Safety sent Abbott a “threat assessment” report that claimed “publicly linking” a supplier or manufacturer of execution drugs would present “a substantial threat of physical harm” and “should be avoided to the greatest extent possible.”

That decision was a shift from three previous rulings in which the attorney general’s office had found that TDCJ failed to prove that disclosing the information would create a substantial threat of physical harm.

The May 2014 ruling came as Texas’ supply of execution drugs was rapidly dwindling. In 2012, the state turned from a three-drug cocktail to a single injection of pentobarbital. According to a Texas Tribune timeline, by August 2013 TDCJ had only four vials of the drug remaining, prompting the state to turn to compounding pharmacies, lightly regulated facilities that typically mix drugs for individual patients. In October 2013, the Woodlands Compounding Pharmacy requested that TDCJ return pentobarbital it had sold to the agency after the company began receiving unwanted media attention. In a letter to TDCJ, Jasper Lovoi, the owner of Woodlands, said he had been made to believe that his company’s role in supplying the drugs would be kept private.

“I find myself in the middle of a firestorm that I was not advised of and did not bargain for,” Lovoi said in the letter.

During the House debate on SB 1697 Tuesday, Smithee said that manufacturers—such as compounding pharmacies—are refusing to sell lethal injection drugs to Texas and other states because of “threats of violence.” But when Rep. Terry Canales (D-Edinburg) asked him to elaborate on those threats, Smithee couldn’t provide examples. Canales is the author of a stalled bill that would require TDCJ to post information about execution drugs, including the manufacturer, on the agency’s website.

A similar exchange took place during debate in the Senate last week. Sen. Joan Huffman (R-Houston), SB 1697’s author, said that when information about the manufacturers of execution drugs was previously disclosed, it had a “chilling effect on reputable pharmacies wanting to provide these compounds to the state of Texas.” She said that investigations by the Texas Department of Public Safety (DPS) had led to the determination that “credible threats” had been directed at suppliers of lethal-injection drugs. But when pressed, Huffman couldn’t cite specific examples. No details of the DPS investigations have been made public.

According to Austin-based attorney Philip Durst, lawmakers have been unable to point to specific threats because there haven’t been any. Durst is one of the plaintiffs attorneys in an ongoing lawsuit against TDCJ seeking disclosure of the name of a particular compounding pharmacy supplying execution drugs to the state.

Durst told the House Corrections Committee at the end of April that based on his assessment of evidence provided by TDCJ and DPS during the lawsuit, there have been no threats of violence against drug suppliers or manufacturers in Texas or in any other state.

Evidence presented by TDCJ in its motion for summary judgment includes emails to drug suppliers that read more like scoldings than threats and a link to a blog post about the Woodlands Compounding Pharmacy that includes an illustration of an exploding head. The post encouraged readers to write reviews of the pharmacy on Google+, sign a petition and contact the American Pharmacists Association.

A state district court sided with the plaintiffs in December 2014 and ordered TDCJ to reveal the name of the lethal injection drug supplier. TDCJ has appealed the decision, but if SB 1697 is signed into law the entire suit could be rendered moot.

Ultimately, “threats” against pharmacies appear to have little to do with the legislation passed yesterday. Even House Corrections Committee Chairman Jim Murphy (R-Houston) called the threat argument a “straw man.” The primary impetus for the law, which both Smithee and Huffman acknowledged in debate, is preserving executions in Texas. Death penalty opponents have seen public shaming of drug suppliers as a potential Achilles’ heel for execution-happy states. TDCJ has a better chance of acquiring the necessary drug supplies if companies are promised secrecy.

Maurie Levin, an attorney involved in the lawsuit against TDCJ, says what’s most troubling about SB 1697 is that it shields the agency and the execution process from demands for transparency or accountability.

“For Texas, of all states, to carry out secrecy in executions is a frightening thought,” Levin said. “And I have no doubt that at some point it will come back and bite us.”