In 2014, attorneys for three death row inmates filed open records requests with the State of Texas seeking to find the source of the drugs used for executing inmates. Then Attorney General Greg Abbott (now governor) decided that the state could withhold that information because the suppliers faced actual harm if their identities were revealed. Interestingly enough, on three previous occasions, Mr. Abbott determined the information was public.
Texas, in its ongoing quest to continue murdering inmates in god's name, fought like a cornered cat to keep the names of the pharmacies secret. They lost at the district court level. They lost at the Court of Appeals. And in June they lost at the State Supreme Court.
But has that stopped the state from continuing to withhold the information? Not a chance. The state filed a motion for rehearing last week.
Both Texas and Arizona are embroiled in litigation over whether the identities of pharmacies that provide drugs for lethal injections should be made public. The state argues that this is a guerrilla tactic from death penalty opponents to shut down the supply of drugs available to states for murdering inmates. They argue that the publicity that would rain down on such a pharmacy would make them think twice before supplying drugs for to the state.
The Republican led state legislature agreed and passed a law in 2015 that shielded the names of the suppliers from the public. Now I could go on for a while about how ironic it is that a bunch of bible-thumping christian conservatives are doing everything they can to make it easier for the state to violate one of their sacred commandments -- but that would just be picking the low-hanging fruit.
Instead we can talk about why the state wants to keep that information secret. First, however, we have to return to 2014 since the law passed by the legislature in 2015 was not retroactive. Once drug suppliers decided not to sell their drugs to states for the purpose of executing inmates, the states had two choices. The first was to "extend" the expiration date of the drugs on hand -- having no idea whether or not the drugs would be as effective after the manufacturer's expiration date. The second was to find compounding pharmacies that would manufacture the drug specifically for the state.
Since the drugs are made at the pharmacy, there is no way to test whether or not they are effective, how potent they are or if they carry any side effects. But what if that's not what was taking place? What if the purpose of shielding the names of the pharmacies is to keep the drug companies from finding out that the pharmacists are selling the manufacturers' drugs under veil of secrecy?
Sure, the compounding pharmacies would get a lot of bad publicity for supplying the drugs to the state -- but in some cases, customers would have no choice but to go to that pharmacy for their drugs. But if a manufacturer cut that pharmacy off from its supply of drugs, the pharmacy would have no choice but to stop providing drugs to the state.
I'm not saying this is what's actually happening - only that it might explain the state's doggedness in the fight.
The bigger issue, however, is the notion that elected officials run this state in our name. We have a right to know what's being done in our name. If the state wants to keep killing inmates, fine, but let's not try to be shady or secretive about it. And if a pharmacy is willing to play footsy with the state's killing machine, then the owner of the pharmacy needs to stand up and own it. His or her customers have a right to know if their pharmacist is aiding in the murder of inmates.
Texas Solicitor General Scott Keller is correct. Death penalty opponents have put pressure on manufacturers to cut off the supply of drugs needed to kill inmates. The belief is that a majority of Americans would be appalled if we went back to electrocuting, suffocating, hanging or shooting inmates. Such a course would run the death penalty right back into a confrontation with the Eighth Amendments ban on cruel and unusual punishment.
And death penalty advocates know that day is coming.