DALLAS — Texas’ prison system does not have to reveal where it gets its execution drugs, the attorney general said Thursday, marking a reversal by the state’s top prosecutor on an issue being challenged in several death penalty states.
Attorney General Greg Abbott, the Republican nominee for governor in the nation’s busiest death penalty state, had rebuffed three similar attempts by the Texas Department of Criminal Justice since 2010. But, on Thursday, he sided with state prison officials who said their supplier would be in danger if identified, citing a threat they declined to release.
His decision, which can be appealed, came the same day Missouri Attorney General Chris Koster said his state should consider creating its own laboratory for execution drugs rather than relying on “uneasy cooperation” with outside sources. A state-operated lab would be a first, and it was not immediately clear if Missouri could implement the change without approval from its Legislature.
Missouri and Texas are among execution states that contend compounding pharmacies that provide them with drugs should remain secret to protect the suppliers from threats of violence. Lawyers for death row inmates said they need the information to verify the drugs’ potency and to protect inmates from cruel and unusual punishment.
The U.S. Supreme Court has 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.
The opinion from Abbott’s office Thursday cites a threat assessment prison officials submitted from the Texas Department of Public Safety that said drug suppliers face a substantial threat of physical harm. However, state agencies did not make the assessment available publicly Thursday.
Abbott’s office said 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.”
A Houston-area compounding pharmacy was previously identified as the state’s execution supplier. State and local law enforcement said last month that they were not investigating any threats against that pharmacy, although its owner complained of “constant inquiries from the press, the hate mail and messages.”
In Missouri, Attorney General Koster said he thinks his state’s Legislature should remove market-driven participants from the system and appropriate funds to establish a state-operated, DEA-licensed, laboratory to produce the execution chemicals.
“As a matter of policy, Missouri should not be reliant on merchants whose identities must be shielded from public view or who can exercise unacceptable leverage over this profound state act,” he said.
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 led several states to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.
Unlike some states, Texas law does not specifically say whether prison officials must disclose where they get their lethal injection drugs.
Abbott’s latest decision stems from an open records request filed before the April executions of serial killer Tommy Lynn Sells and convicted murderer Ramiro Hernandez-Llanas. Texas prison officials used a new supply of pentobarbital, a powerful sedative, but they refused to name the supplier.
Defense attorney Maurie Levin, called Abbott’s decision deeply disturbing.
“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 written statement.
Associated Press writer Jim Salter in St. Louis contributed to this report.