As frequent contributor Lee pointed out in his comment to my posting about the court decision compelling the State of Texas to release the name of all pharmacies supplying its death drugs, the state Supreme Court obtained a ruling that (at least for now) keeps the names under wraps.
There were a couple of things that fascinated me about this story, however. The inmates who sued have a right to know who made the drugs the state plans on using to kill them and whether those drugs do what they are advertised to do. The only way to do that is to release the name of the compounding pharmacy so that the inmates' lawyers can look into things.
The original decision was made by State District Judge Susan Covington. The state then filed a writ of mandamus against Judge Covington that was denied by the Third Court of Appeals out of Austin. The state then filed the writ with the state's highest civil court and argued that releasing the names of the pharmacies would harm the owners of those pharmacies and make it more difficult for the state to acquire its drugs of death.
And, might I add, making it harder to acquire the drugs is the whole idea. If pharmacies know their names are going to be released to the public, it might just make them think twice before taking the state's money to be accessories to murder.
The Supreme Court ruled in the state's favor and stayed Judge Covington's order. But the more I thought about the situation, the more I questioned whether or not the ruling was legal.
The state argued that releasing the names of the pharmacies might expose the pharmacists who work there to violent acts of reprisal for their role in aiding the state's killing machine. The state argued that there had been credible threats when The Woodlands Compounding Pharmacy was named as the state's supplier earlier this year.
But even if the state's allegation is true, the harm would appear to be to the pharmacies, not to the state. There were no allegations that the representatives of the state were being threatened for their role in murdering inmates. The harm, if any, would be to the reputations of the pharmacies who decided to play along with the state. But the pharmacies aren't the ones who filed suit to prevent the release of their names.
Should the Supreme Court have even considered the matter in light of the fact that the state may not have had standing to file suit in this matter. The only possible harm to the state would be the reluctance of pharmacies to provide the death drugs - but is that enough harm to warrant the Supreme Court staying the ruling of an appeals court?
When the European suppliers cut off delivering pentobarbital due to philosophical issues with the death penalty the ability of states to kill inmates was impaired. But that was a business decision and the states had no recourse to the courts. If the names of the compounding pharmacies are released it may very well make it more difficult for the state to acquire the drugs, but that, too, would be a business decision.
The Supreme Court's ruling was wrong for any number of reasons. And so is the death penalty.