TDCJ Will Appeal Judge's Ruling on Execution Drugs

Amid national debate over the disclosure of information about drugs used in executions, Texas Department of Criminal Justice officials said Thursday that they will appeal a judge’s order to disclose the supplier of a new batch of its execution drugs.

“We are disappointed in the district court's decision and will be appealing the ruling to a higher court,” TDCJ spokesman Jason Clark said in an email.

TDCJ officials have argued that the identity of execution drug suppliers should be protected based on threats the companies have received in the past. But state district Judge Suzanne Covington, in a ruling from the bench, ordered that the source of execution drugs must be revealed to the attorneys of two convicted killers who sued the state seeking the information. 

Maurie Levin, a lawyer for one of the inmates, said in a statement that she was disappointed in TDCJ’s attempts to keep the information secret.

“It is unacceptable to keep prisoners or the public in the dark regarding how executions are carried out — including the source of the drugs,” Levin said.

The ruling in Austin came a day after attorneys for two death row inmates, Tommy Lynn Sells and Ramiro Hernandez Llanas, filed a lawsuit against TDCJ seeking information about the state's source of the drug pentobarbital, which will be used in their executions scheduled for April 3 and April 9, respectively.

Sells was condemned for slashing two girls' throats in 1999 at a home near Del Rio; one girl died. Hernandez Llanas was sentenced in the 1997 beating death of a man who owned a ranch where Hernandez worked near Kerrville.

Without information about where the drugs come from and the purity, potency and integrity of them, the inmates can't evaluate the risk that their executions might subject them to cruel and unusual pain, in violation of the Eighth Amendment, the lawsuit argues. 

The lawsuit came just days after Texas prison officials said that they would not disclose information about the suppliers, manufacturers or other details about the drug, citing a need to protect the supplier.

“We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process,” the Texas Department of Criminal Justice said in a previous statement. 

TDCJ has struggled to maintain a supply of lethal injection drugs, which originate in European countries that oppose the death penalty. And last year, the agency lost its most recent supplier of the drug, a compounding pharmacy, after the company's name was made public and it received threats, Clark said. Many states have turned to compounding pharmacies, where drugs are made to fit the needs of individual patients.

The TDCJ's current supply of pentobarbital used for executions expires April 1. Prison officials said last week they have a new supply but cited security reasons for declining to disclose the supplier's name. 

Recently, there has been controversy surrounding the use of execution drugs from compounding pharmacies. Proponents of disclosing information about the drugs say that such pharmacies are not adequately regulated. On Wednesday, an Oklahoma judge ruled that state's secrecy statute was unconstitutional because it denied prisoners facing execution access to the courts.

“Executions carried out with compounded drugs in other states have led in some instances to prolonged and seemingly torturous executions,” Levin said. In the Texas lawsuit, lawyers argued that executions in Oklahoma and South Dakota performed with compounded drugs appear to have had serious problems, including one incident in which an inmate, after being injected, said, "I feel my whole body burning."

Currently, similar lawsuits are pending in other death penalty states where prison officials are seeking to keep the source of execution drugs confidential.

Because Texas operates the nation's busiest execution chamber in Huntsville, with 511 executions since 1983, including three so far this year, the case is being watched closely nationwide.