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Lawsuits Challenge Transparency of Texas Execution Process

Defense lawyers say that information about the drug Texas uses in executions – pentobarbital — is shrouded in secrecy. And they worry a dearth of information could lead to cruel and unusual executions.

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When Robert James Campbell is executed next week for the 1991 kidnapping and murder of a Houston bank teller, a health care professional will inject him with pentobarbital, the drug Texas has relied on since 2012.

That much about how drugs are used in Texas executions is known from the Texas Department of Criminal Justice’s 10-page “Execution Procedure” document.

But details about how and where the agency obtained the drug and how much it has left are shrouded in secrecy, along with information about alternative drugs the prison system has on hand for use in executions should the supply of pentobarbital dwindle. Lawyers have zeroed in on Texas' secrecy in the aftermath of a botched execution in neighboring Oklahoma, raising questions about whether the lack of information about how the death penalty is implemented could lead to cruel and unusual punishment. But TDCJ officials contend they are not being secretive and that they are protecting the pharmacies that supply the drugs needed for executions.

Lawyers for death row inmates say it wasn’t always so difficult to obtain information about execution drugs in Texas. The TDCJ has clamped down on that information in recent months after the name of a compounding pharmacy it used to obtain pentobarbital for executions was made public last year. Two days later, the pharmacy demanded the drugs be returned. 

“The new thing to do is to be secret about it,” said Jonathan Ross, Campbell's attorney. “Obviously, they’re having difficulty finding reputable pharmacies to fulfill it.”

Ross and other attorneys who represent condemned inmates worry the TDCJ's insistence on secrecy about the execution process could lead to problems in Texas. And they point to last month’s bungled execution of Clayton Lockett in Oklahoma as proof.

“The risk of torture and a clearly cruel-and-unusual outcome has been proved to be a very real threat when states aren’t required to facilitate executions with transparency and accountability and disclosure of the sort sought – and denied – in Oklahoma,” Ross argued in a request to stay Campbell’s May 13 execution.

In January 1991, Campbell and co-defendant Leroy Lewis abducted Alexandra Rendon from a Houston Chevron station. The two took Rendon to a remote stretch of road, where they robbed and raped her. Campbell is convicted of shooting her in the back and leaving her for dead. Her body was found 12 days later. Lewis confessed to police and was sentenced to 35 years in prison. He has since been released on parole.

In their request for a halt to his execution, the lawyers say the execution could violate his Eighth Amendment right to be free of “cruel and unusual” punishment.

Before Lockett's execution in Oklahoma, state officials there had recently switched to a new three-drug lethal-injection procedure. After a lab technician failed to find a suitable vein in Lockett’s neck, arms or legs, a doctor stepped in and injected the lethal drugs through his groin. Lockett died more than 50 minutes later, not of the drugs but of a heart attack.

Lockett's attorneys had sued the state of Oklahoma before his execution, claiming that state's secret death penalty procedure could result in severe pain. A state court found the Oklahoma drug secrecy law unconstitutional, and Lockett's execution was initially stayed by the state Supreme Court. The state high court lifted the stay after receiving pressure from Oklahoma Gov. Mary Fallin to allow the execution to proceed. 

Campbell's attorneys worry Texas' recent efforts to keep information about execution drugs used in its procedure secret could pave the way for problems here, too.

Maurie Levin, another attorney for Campbell, said that until last month, the TDCJ often provided details about where it obtained execution drugs.

“Purchase documents, the lab documents, what lab did the testing,” Levin said.

But Jason Clark, the TDCJ spokesman, insisted this week that revealing the supplier of the pentobarbital to be used in the execution next week could subject that pharmacy's owners and employees to physical harm.  

"We are not disclosing the identity of the pharmacy because of previous specific threats of serious physical harm,” Clark said.

TDCJ has not revealed any additional details about those threats, and last month an Associated Press report found no evidence of an investigation by police agencies into threats to the pharmacies.

Defense attorneys like Greg Westfall argue the nation’s prison officials continue to keep things secret not because of safety concerns but to keep the execution process intact.

“The idea that drug manufacturers are going to get death threats is a bunch of bull,” said Westfall, of Fort Worth, who has defended about 25 people facing capital punishment. “What they are worried about is [the public] giving economic pressure to the manufacturer.”

The use of compounding pharmacies to supply execution drugs has also prompted legal challenges against the TDCJ and its sister agencies in other states based on the fact that the compounded drugs are not regulated by the federal Food and Drug Administration.

“The source of the drug matters,” said Levin, pointing to a meningitis outbreak that killed 64 people last year, which was traced to contaminated steroid pain injections from a compounding pharmacy in Massachusetts.

Clark, the TDCJ spokesman, said the agency is not being secretive.

“I believe that characterization is inaccurate. We remain open about the kind of drugs we use to carry out executions,” he said. “This information has been shared with attorneys, courts and the media.”

The Texas Tribune contacted 14 lawmakers who are on the House Corrections Committee and the Senate Criminal Justice Committee to discuss the controversy over execution drugs.

Of those, state Sen. John Whitmire, D-Houston, declined to comment, as did state Rep. J.D. Sheffield, R-Gatesville. 

State Rep. James White, R-Woodville, was the only member of either panel who called back to discuss the issue. Last month, White, the vice chairman of the House Corrections Committee, watched the execution of Tommy Sells to view the process firsthand.

He said that with so many agencies involved in the legal process leading up to an execution, including the governor’s office, the attorney general’s office and TDCJ, a lack of information was not a problem.

“I am confident that what the state of Texas is doing at this time is appropriate, transparent and constitutional,” he said. 

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