State, Lawyers Debate Identifying Execution Drug Supplier

Revealing Texas' supplier of execution drugs could have a harmful effect on the provider and as a result leave the state empty-handed, a lawyer for the state suggested Wednesday during an appeals court hearing.

State Deputy Solicitor General Matthew Frederick told a three-judge panel on the Austin-based 3rd Court of Appeals that a "substantial risk" comes with naming the state’s supplier. Specifically, he said, people who are against the death penalty might lash out against the supplier.

"Pharmacies don't have security details," Frederick said. "Their only protection is anonymity."

But three lawyers who have filed suit to release the identity of lethal injection drug suppliers say that no “substantial threat of physical harm” exists; therefore, the information legally cannot be withheld, their attorney, Philip Durst, argued.

The appeals court had challenged attorneys for the Texas Department of Criminal Justice and the group of three lawyers — who have represented clients on death row — to differentiate between risks and threats when explaining what the harm is in identifying a compounding pharmacy that has provided the state with lethal injection drugs. The court did not offer a timeline for when it would make a ruling, but either party could appeal a future ruling to the Texas Supreme Court.

The three lawyers sued the Texas Department of Criminal Justice in 2014 after the agency refused a request to identify the compounding pharmacy that supplies the state with lethal injection drugs. The attorneys — Maurie Levin, Naomi Terr and Hilary Sheard — had made the request through the state's Public Information Act. 

A state district court later that year ordered the prison agency to release the pharmacy's identity because it was public information, but the agency appealed. Since then, major pharmaceutical companies have refused to supply capital punishment states with the drugs needed to execute the condemned, forcing Texas to scramble and find alternative providers. In 2015, Texas made it legal to conceal the identity of parties that supply lethal injection drugs to the state.

As a result, the attorneys are challenging the Department of Criminal Justice to release the identity of lethal injection drug suppliers from before the law went into effect last September.

The three lawyers say that identifying lethal injection drug providers makes it easier to hold them accountable. But the state argues that releasing that information could lead to physical harm of its supplier. There may be risk, but there is no sign of an imminent threat, attorneys for both sides acknowledged before the appeals court.

Justice Bob Pemberton pushed back Wednesday on the state's "substantial risk" characterization, saying that there is a difference between a risk and a threat, and that individuals such as former Gov. Rick Perry have been vocal about their position on capital punishment, which hasn't led to threats being realized. A pharmacy supplier is a soft target, though, Frederick responded.

Also, Frederick referenced the 2013 revelation that the Woodlands Compounding Pharmacy supplied the state with execution drugs led to significant amounts hate mail and messages. As providers have been identified over the years, they have stopped making the drugs, according to multiple media reports.

Equating people who oppose the death penalty to anti-abortion activists, Durst said that such activists generally protest peacefully. There's never been anything other than "How could you?" and other responses protected by the First Amendment, he said.

The judges also asked how allowing the supplier’s identity to remain secret because of safety concerns would not gut the state's Public Information Act. Frederick said that keeping the identity secret falls in line with the physical safety exemption from complying with a public information request. Durst said that labeling someone or something a threat should be based on concrete evidence. Theories from experts alone is not enough, he said.

"It can't be that," Durst told the panel.

Until a few years ago, major pharmaceutical companies provided execution drugs to death penalty states, Frederick said. As soon as smaller companies are identified, they might leave the market, he said.

"They don't want to stick around long enough to see what happens," he said.

After the larger companies dropped death penalty states as clients, Texas began seeking alternative providers to make the lethal drugs, but the federal government has weighed in on a couple of occasions.

In April, the Food and Drug Administration barred the Texas Department of Criminal Justice from importing sodium thiopental, a drug used in executions. Last year, Texas and Arizona reportedly tried to import execution drugs from India but were unsuccessful.