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Official: Texas can keep lethal drug source secret

In reversal, Texas attorney general says state can keep its source of execution drugs a secret

Posted on May 29, 2014 at 4:17 p.m.

DALLAS (AP) — Texas’ prison system does not have to reveal where it gets its execution drugs, the state attorney general’s office said Thursday, marking a reversal by the state’s top prosecutor on an issue being challenged in several death penalty states.

Under Greg Abbott, who is also the Republican nominee for governor in the nation’s busiest death penalty state, the Texas Attorney General’s Office had since 2010 rejected three similar attempts by the Texas Department of Criminal Justice to keep secret its source of the drugs used to carry out lethal injections.

But on Thursday, Abbott’s office sided with state prison officials who said their supplier would be in danger if identified, citing a “threat assessment” signed by Texas Department of Public Safety director Steven McCraw.

The assessment, a one-page letter dated March 7, said pharmacies “by design are easily accessible to the public and present a soft target to violent attacks.” He added that naming a pharmacy supplying execution drugs “presents a substantial threat of physical harm ... and should be avoided to the greatest extent possible.”

Abbott’s decision came the same day Missouri Attorney General Chris Koster said his state should consider creating its own laboratory to make execution drugs rather than relying on “uneasy cooperation” with outside suppliers. A state-operated lab would be a first, and it wasn’t immediately clear if Missouri could open such a lab without approval from lawmakers.

Missouri and Texas are among death penalty states that contend the compounding pharmacies providing them with execution drugs must remain secret in order to protect the suppliers from threats of violence. Lawyers for death row inmates say they need the information to verify the drugs’ potency and protect inmates from unconstitutionally cruel and unusual punishment.

Courts — including the U.S. Supreme Court — have yet to halt an execution based on a state’s refusal to reveal its drug supplier. The secrecy argument also was used ahead of a bungled execution last month in Oklahoma, though that inmate’s faulty veins, not the execution drug, were cited as the likely culprit of the problems there.

Unlike some states, Texas law doesn’t specifically say whether prison officials must disclose where they buy lethal injection drugs. The opinion from Abbott’s office Thursday cites the threat assessment as the justification for doing so, saying that “in this instance and when analyzing the probability of harm, this office must defer to the representations of DPS, the law enforcement experts charged with assessing threats to public safety.”

Prison officials in Texas have previously provided little public evidence to support their claim that its execution drug supplier would be in danger if identified.

State and local law enforcement, including a spokesman for the Department of Public Safety, said last month they were not investigating any threats against a Houston-area compounding pharmacy previously identified as the state’s execution supplier.

The pharmacy’s owner had complained of “constant inquiries from the press, the hate mail and messages,” and the DPS assessment released Thursday said some of the threats made against that pharmacy “should be taken seriously.” It does not say why, and a spokesman for the agency did not immediately return a message Thursday night asking if those threats are now under investigation.

In Missouri, Koster said that he believes his state’s Legislature “should remove market-driven participants and pressures from the system and appropriate funds to establish a state-operated, DEA-licensed laboratory to produce the execution chemicals in our state,” according to a transcript provided by his office.

Earlier this month, The Associated Press and four other news organizations filed a lawsuit against the Missouri Department of Corrections, claiming the state’s refusal to provide information on the execution drug violates the public’s constitutional right to have access to information about the punishment.

Death penalty states have been scrambling to find new sources of drugs after several drugmakers, including many based in Europe, refused to sell drugs for use in lethal injections. That’s led several states to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as conventional pharmacies.

Abbott’s decision is expected to be appealed and could eventually land before the Texas Supreme Court. A prominent Texas defense attorney, Maurie Levin, called Abbott’s decision “deeply disturbing and frankly quite shocking.”

“Serious questions surround this about-face, including why our attorney general, who once championed transparency, is suddenly now supporting secretive government practices,” Levin said in a statement.

Graczyk reported from Houston. Associated Press writer Jim Salter in St. Louis contributed to this report.

Follow Nomaan Merchant on Twitter at http://www.twitter.com/nomaanmerchant.




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