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Texas Isn’t Saying Where It Got Its New Supply of Pentobarbital

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The last time we talked about Pentobarbital, it was because the state was on the verge of running out of the drug it uses to perform lethal injections on death row inmates. At the time, it looked like Texas would have some difficulty coming up with a new supply, because the “compounding pharmacy” from which the last batch had been ordered received a strong PR pushback from death penalty opponents

The state, however, found a novel way to assuage the fears of the supplier of the new batch—it’s simply refusing to release the source of the drug. As the Associated Press reports

[C]orrection officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with The Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.

The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general’s office, which has said the state’s open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.

“We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process,” said Texas Department of Criminal Justice spokesman Jason Clark.

As the AP suggests, it’s unclear whether the Department of Criminal Justice can legally keep the source of the lethal injection drug a secret—and whether inmates due to be executed would have a stronger case for a stay of execution when they’re about to be injected with a drug of unknown origin is likewise something that the courts would decide. 

Presumably the answer to the first question will be resolved as soon as someone receives a response to the first Freedom of Information Act request for the source. As the state argues, there may well be safety concerns for the compounding pharmacy responsible for providing the drugs, though it’s also worth noting that the last compounding pharmacy owner to provide a batch of the drug to the department, Jasper Lovoi, owner of the Woodlands Compounding Pharmacy outside of Houston, was fairly vocal about the troubles he encountered as a result of his involvement, but he didn’t explicitly say anything about specific threats of serious physical harm in his letter to the state demanding a return of the drugs, citing instead specific concerns of “constant inquiries from the press, hate mail and messages, as well as getting dragged into the state’s lawsuit with the prisoners, and possible future lawsuits.”

In any case, it seems clear that the provenance of the new batch of drugs is going to be a question that will have to be resolved in the courts, either as someone who filed a FOIA request pursues answers, or as someone who’s about to be executed argues that they have the right to know the origin of the drugs that will be used. 

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