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Questions Remain About Texas’ Pentobarbital Supply

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The questions surrounding Texas’ supply of Pentobarbital—the drug the state uses to carry out executions, of which it recently acquired a new supply of unknown provenance—have only deepened over the past couple weeks. Namely, the prisoners who face execution in Texas are seeking relief in the courts to learn exactly where the drug that will be injected into their veins came from. The state’s Department of Criminal Justice, meanwhile, seeks to protect the identity of the drug’s providers, citing “specific threats” against the previous compounding pharmacy it had contracted to make them a batch of the drug.

The first of the executions to be conducted with the mystery batch of pentobarbital is scheduled for Thursday, with the second occurring later this month. Last week, the attorneys for the prisoners scheduled to die in April filed—and were granted—open records requests to identify the source of the drug.

It was a short-lived victory, though, as an appeals court quickly ruled that the only people that those records would be made available to would be the prisoners and their attorneys. Then, hours later, the Texas Supreme Court issued a stay stopping the release of even that information. 

Because of jurisdictional issues in Texas—the Texas Supreme Court only handles civil matters (such as those dealing with open records requests), while the Court of Criminal Appeals is the highest court in the state for criminal issues (such as whether or not the executions will be carried out as scheduled)—it’s possible that the Supreme Court could rule that the prisoners do have the right to the information, but those prisoners will already have been killed by the time that ruling’s made.

All of which makes for a curious potential Catch-22: The state may well be under an obligation to tell prisoners how they plan to kill them, but these particular prisoners may not be entitled to that information until after they’re dead. 

For its part, the state seems to feel little urgency to settle this matter before the first prisoners are put to death with the unidentified supply of Pentobarbital. As Fox News reports

In three past such opinions, the attorney general’s office has directed the agency to release records about its lethal injection drugs. [Texas prison system counsel Patricia] Fleming, in the request filed Tuesday, argued that circumstances have changed since 2012, the last time the attorney general’s office said the information should be disclosed.

“It is the (prison system’s) opinion that release of the information at issue creates a risk of physical harm to pharmacy personnel and customers in and surrounding the pharmacy,” she wrote.

Lauren Bean, a spokeswoman for Attorney General Greg Abbott, said before receipt of Fleming’s request that the office had 45 business days to reply.

The state does indeed have 45 days to reply to the request, which has the attorneys for the prisoners seeking relief from the federal courts. Those attorneys filed suit on Tuesday asking the court to force the state to name the drug’s supplier. At the moment, it’s unclear whether a suit seeking to postpone the execution dates has or will be filed with Texas courts who possess jurisdiction in criminal cases. Either way, the time to answer these questions before the first prisoners are executed is quickly running out. 

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