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Texas Can't Kill Inmates Until It Reveals Where It Got Its Lethal Drugs

It may only be a temporary injunction, but a legal challenge in the death penalty's most enthusiastic state is nevertheless a big deal.
Image: Wikimedia Commons

Difficulty procuring death penalty drugs has halted executions in Texas, America’s busiest death chamber.

Today, US District Judge Vanessa Gilmore issued a temporary injunction stopping the lethal injection of Tommy Lynn Sells, who was scheduled to be executed April 3. Gilmore cited concerns about the state’s refusal to reveal its source of lethal injection drugs, according to the Associated Press.

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Sells and Ramiro Hernandez Llanas, another inmate on death row, filed a lawsuit in March against the state and its secrecy laws, arguing that they have a right to know about the suppliers and drugs that will end their lives. On March 27, Texas prison officials were ordered to disclose the supplier of a new batch of lethal injection drugs. The next day the Texas Supreme Court temporarily blocked the public reveal of Texas’s lethal injection drug provider.

The AP report states that Gilmore had ordered the Texas Department of Criminal Justice to provide Sells' attorneys with information about the drug procurement, supplier, testing, including what kinds of tests and who conducted them. In her ruling Wednesday, Gilmore said that prison officials haven't provided them "with sufficient information.”

State officials have insisted that the supplier’s identity must remain hidden for their own protection. The Houston Chronicle reported that during a hearing last week, Assistant Attorney General Nicole Bunker-Henderson said recent threats against unidentified execution drug manufacturers necessitated the secrecy, and that a recent threat assessment by police agencies suggests that pharmacists who are making the drugs might face physical danger.

But Gilmore’s decision echoes one made by Oklahoma County District Judge Patricia Parrish last week, who said that withholding information about drug suppliers violated an inmate’s constitutional right to due process.

“The state's secrecy regarding the product to be used for lethal injection has precluded (the inmates and their attorneys) from evaluating or challenging the constitutionality of the method of execution," Gilmore wrote in her a five-page opinion.

Texas has 292 inmates on death row, the most in America, but just like everywhere else, the state has had trouble acquiring lethal injection drugs as drug manufacturers shy away from providing them. Texas moved from a three-drug cocktail to a single drug, pentobarbital, but had to find a new supplier after its source, a compounding pharmacy in suburban Houston, refused to sell more pentobarbital to the state when its name was made public.

In emails released last week, it was revealed that Texas state officials were bantering with their Oklahoma counterparts about getting pentobarbital from the compounding pharmacies in their neighboring state, which had also supplied Missouri with lethal injection drugs. As in Texas, executions in Oklahoma are at least temporarily halted while the constitutionality of the laws governing the practice are examined.

While it’s only a temporary injunction, it’s noteworthy that the death penalty is getting legal pushback even in the state where it is used most often. While the majority of Americans are still in favor of the death penalty, support for the death penalty is the lowest that it's been since the 1970s. In states that support capital punishment, officials are still working to allow executions ordered by the state to go forward, but legal barriers keep popping up. For states that are already on the fence about the death penalty have another reason to wonder if its even worth the trouble.