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Texas’s execution drug of choice is pentobarbital. The State currently has 27 doses of it in stock. Compared to other states struggling to keep an adequate inventory of these kinds of drugs on hand, Texas has maintained a steady supply. Texas’s ability to do so comes in part from its practice of extending the expiration date of doses by retesting potency levels and relabeling them as their expiration dates near. Several death penalty defense attorneys have taken issue with this practice, believing that “old” drugs cause unnecessarily painful executions.

“Botched” Executions Spur Public Protest

Some states have had failed execution attempts because of less-than-lethal doses. Oklahoma had two such incidents in 2014 and 2015, causing the state to impose a three-year moratorium on executions. This also prompted public outcry to uncover the identities of execution drug suppliers. Once exposed, these pharmacies often receive an influx of hate mail, critical comments on their websites, and negative media attention.

Should Suppliers’ Identities Be Made Public Under the Public Information Act? Austin Appeals Court Thought So. [1]

In the course of their legal representation of Texas death-row inmates, three Texas attorneys requested that the Texas Department of Criminal Justice publish its execution protocol, execution drug information, drug testing results, and the drugs’ source. The Department produced all the requested information except for the drugs’ source.

To support withholding the source’s identity, the Department request a ruling from the Texas Attorney General saying that such information could be withheld from public disclosure because of an exception in the Texas Public Information Act (PIA). This exception allows withholding where there is a substantial threat of physical harm if the source is disclosed. Meanwhile, the death-row attorneys petitioned the trial court for the source information to be disclosed. The trial court sided with those attorneys and ordered disclosure, finding that there was no substantial threat of physical harm in doing so.

The court of appeals agreed too, concluding that the Department was merely speculating when it argued that disclosing the source’s identify might give rise to a substantial threat of physical harm. The Department then petitioned the Texas Supreme Court for review, and the Court granted.

The Texas Supreme Court Reverses [2]

The Texas Supreme Court reversed the court of appeals last month. It said that while the “PIA’s broad and liberal applicability favor[ed] disclosure,” the PIA does not have a “boundless reach.” “Indeed,” the Court went on, “the Legislature has enacted more than fifty exceptions to the broad rule of disclosure.” Among those exceptions is Tex. Gov’t Code § 552.101, which excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” Information considered confidential by “judicial decision” has the effect of incorporating protections from the common law. In this case, the relevant common-law protection is the freedom from physical harm. Thus information that, if disclosed, would create a substantial risk of physical harm need not be disclosed under the PIA. [3]

The Court concluded that releasing the drugs’ source’s identity would create a substantial threat of physical harm. The evidence the Court credited with arriving at that conclusion included an email from a professor advising a lethal-injection-drug-supplying pharmacy to “beef up” its security now that it was in the “spotlight” as a supplier and the conclusions of a threat-assessment expert saying that there was indeed a substantial threat of physical harm if the identity of the source were publicly disclosed. The Supreme Court therefore reversed the court of appeals and held that “the physical-safety exception to the PIA applies to protect the identity of a vulnerable retail compounding pharmacy from public disclosure.”

An Inherently Political Issue

Court cases dealing with capital punishment garner a great deal of attention. It seems that public opinion toward execution-drug suppliers has been increasingly negative. So much so that since 2016, all open-market manufacturers of drugs have tried to avoid controversy altogether by refusing to use their products for death penalty purposes. As the onus of providing death penalty drugs thus falls on smaller-scale providers, determining whether public disapproval rises beyond the level of people expressing their distaste for capital punishment entails some degree of difficult line-drawing. But in this gray area, the Texas Supreme Court has made clear that the law protects execution-drug suppliers. Whether this has a significant adverse effect on government transparency remains open for debate.

1. Texas Dep’t of Criminal Justice v. Levin, 520 S.W.3d 225 (Tex. App.—Austin 2017), rev’d, No. 17-0552, 2019 WL 1575407 (Tex. Apr. 12, 2019).

2. Texas Dep’t of Criminal Justice v. Levin, No. 17-0552, 2019 WL 1575407 (Tex. Apr. 12, 2019).

3. The Texas Legislature in 2015 enacted Tex. Gov’t Code § 552.1081, which excludes from PIA disclosure “any person or entity that manufactures, transports, tests, procures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution.” Section 552.1081 likely would have resolved the dispute in the Department’s favor anyway, but because of the timing of both the lawsuit and the statute’s enactment, the Supreme Court made its decision under the common law physical-harm exception.

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