Court to re-evaluate execution drug case

Justices opt to revisit question of whether to reveal supplier

Months after the Texas Supreme Court said it would force the prison system to reveal its execution drug supplier, the justices reversed course in a rare move this week and decided to rehear the case.

Now, after years of legal wrangling, both sides will be able to present oral arguments in January so the court can re-evaluate whether the state must hand over the name of its 2014 drug supplier.

“This is the state’s gravest responsibility and the Texas Supreme Court is giving it due consideration,” said attorney Maurie Levin, one of the plaintiffs who filed suit four years ago. “I have faith that the Supreme Court will uphold the fundamental principles of transparency and open government.”

Texas Department of Criminal Justice spokesman Jeremy Desel celebrated the Friday ruling, saying the agency would “look forward to January.”

“Releasing publicly the identity of any supplier of execution drugs,” he added, “raises serious safety concerns that real harm could come to the business, operators and its employees.”

Limited effect

Though the case only concerns the state’s supplier from 2014 and not its current source, Texas has vigorously fought the lawsuit, claiming it would imperil the state’s ability to carry out executions.

“If allowed to stand, the court of appeals’ decision directs the public unmasking of a supplier in Texas’s lethal-injection drugs, which jeopardizes the State’s ability to carry out the death penalty,” the state wrote in a filing earlier this year.

But the death row lawyers behind the lawsuit framed it as a matter of openness and availability of information to the public.

“This case is really about transparency and open government,” Levin said in June. “For the state of Texas to fight at every turn to keep the execution process, even from four years ago, behind closed doors is just outrageous.”

Even if the court again finds that the state should release the source of its drugs, the ruling would have a limited effect; in 2015, the year after litigation in the case started, the Legislature passed a law making secret the identities of any execution drug suppliers. Any court decision could only force the release of information from before that time.

The lawsuit at the center of it all began four years ago, after the Texas prison system refused to name its drug supplier in response to public records requests from Levin and two other death penalty attorneys. The attorney general sided with prison officials, so Levin and her colleagues filed suit.

In 2017, an Austin-based court of appeals sided with the death row lawyers, so the state appealed the case up to the Texas Supreme Court. In June, that court upheld the lower court’s decision.

Days after the ruling, the state filed a motion for rehearing arguing that the whole thing was just an attack on the death penalty that would have “potentially devastating consequences” for public safety.

“If allowed to stand, the court of appeals’ decision directs the public unmasking of a supplier in Texas’s lethal-injection drugs, which jeopardizes the State’s ability to carry out the death penalty,” the state claimed in its filing.

‘Guerrilla war’

By way of proof, attorneys for the state brought up litigation filed by a group of Arkansas inmates who earlier this year sought to force Texas to reveal the source of its lethal injection drugs so that they could ask Arkansas to use the same drugs.

In response, the pharmacy filed an affidavit saying they’d no longer do business with the prison system if their identity were disclosed. The state went on to argue that there could be “grave consequences” for the pharmacy, which is a “soft target” in an “urban area, whose only defense is its anonymity.”

There have not been any known attacks on pharmacies in connection with supplying lethal injection drugs, according to Robert Dunham of the Death Penalty Information Center.

In late July, the state of Arizona chimed in, filing a brief in support of the Lone Star State’s position.

“If permitted to stand, the Court of Appeals’ opinion will bring dire consequences that ripple beyond Texas and threaten the death penalty’s operation nationwide,” the brief noted. “Put simply, public disclosure of a rare and valuable supplier of lethal-injection drugs chills other current and potential suppliers, and facilitates the escalating ‘guerrilla war against the death penalty.’ ”

On Friday, the state’s highest civil court granted the motion for rehearing, and now both sides will be able to present arguments on Jan. 23.