A supplier of Texas’ execution drugs can remain secret under a court ruling Friday that upheld risks of “physical harm” to the pharmacy, ending what state officials called a threat to the entire U.S. death penalty system.
The decision by the Texas Supreme Court, where Republicans hold every seat on the bench, doesn’t change operations at the nation’s busiest death chamber because state lawmakers banned the disclosure of drug suppliers for executions starting in 2015.
A lawsuit filed a year earlier by condemned Texas inmates argued that the supplier’s identity was needed to verify the quality of the drugs and spare them from unconstitutional pain and suffering. Lower courts went on to reject Texas’ claims that releasing the name would physically endanger pharmacy employees at the hands of death-penalty opponents.
Now, however, the state’s highest court has found the risks valid and ordered the identity of the supplier to stay under wraps.
“The voters of Texas have expressed their judgment that the death penalty is necessary, and this decision preserves Texas’ ability to carry out executions mandated by state law,” Republican Texas Attorney General Ken Paxton said in a statement.
The court deciding that a “substantial” risk of harm exists appeared to largely hinge on an email sent to an Oklahoma pharmacy in which the sender suggested they enhance security and referenced the bombing of an Oklahoma City federal building in 1995.
“I’m speechless with the absurdity of them relying on that singular fact to close, to keep in secret how Texas essentially carries out its execution,” said Maurie Levin, a defense attorney who helped bring the original lawsuit.
The availability of execution drugs has become an issue in many death penalty states after traditional pharmaceutical makers refused to sell their products to prison agencies for execution use. Similar lawsuits about drug provider identities have been argued in other capital punishment states.
Last year, Arizona’s attorney general filed a brief in support of Texas, arguing that disclosing the name of the pharmacy would “bring dire consequences that ripple beyond Texas and threaten the death penalty’s operation nationwide.”
Defense attorneys have called it a matter of transparency and say Texas’ claims of potential physical harm are overblown. Texas Supreme Court Justice Paul Green seemed to agree in some respects, writing in the court’s opinion that a “firestorm” of hate mail and negative media coverage directed at a Texas execution-drug supplier in 2013 did not amount to a risk of substantial harm as the state suggested.
Among the hate mail Texas submitted as evidence was one that read: “Did you know you were selling drugs to the Texas Department of Corrections for ‘MURDER?’ Please consider ‘NOT’ selling anymore drugs to be used for executions/MURDER!”
But Green said the court did see valid concern over the email from a professor to the pharmacy in Oklahoma that said: “I’d at least want to beef up my security now that you’ve been put in the spotlight.”
The ruling only applies to the name of the pharmacy that provided the drugs for executions in 2014, before Texas changed the law to prohibit releasing supplier identities.