*Editor's note: This story has been updated to include a comment from the Texas Department of Criminal Justice.
The name of the compounding pharmacy supplying lethal injection drugs for Texas executions must be released because it is public information, a judge ruled late Thursday.
State District Judge Darlene Byrne granted summary judgment in favor of three lawyers who often work for death row inmates in Texas — Maurie Levin, Naomi Terr and Hilary Sheard — in a little-watched lawsuit filed in Austin earlier this year.
"It’s a big deal," plaintiffs attorney Philip Durst said of Byrne's decision. "It goes to the topic of how we provide [public] information."
Since the Texas Department of Criminal Justice is expected to appeal the ruling, however, it may be a while before the name is revealed.
"If they appeal, then we don’t get the names until it’s over," Durst conceded.
Jason Clark, a spokesman for TDCJ, confirmed to The Texas Tribune late Thursday that the agency would appeal.
On Friday, Clark elaborated.
"As we have said before, disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees. It would also have a significant impact on the agency’s ability to carry out executions mandated by state law," Clark said. "Protecting the identity of the compounding pharmacist has been previously litigated in both state and federal courts and the agency anticipates winning on appeal, as it has before, when the courts examine the case further."
The three lawyer-plaintiffs sued TDCJ after the prison agency refused to release the name of the compounding pharmacy used to supply the prison system with the lethal injection drugs. The lawyers had filed a request for the information under the Texas Public Information Act and the agency refused to release it.
The lawyers' suit originally included two more plaintiffs, both Texas death row inmates. Both, Tommy Lynn Sells and Ramiro Hernandez-Llanas, were executed last April.
In September 2013, TDCJ turned to compounding pharmacies, which are allowed to mix or "compound" drugs on site, for its lethal injection drugs after manufacturers stopped providing pentobarbital to U.S. prison systems. But since the identity of one of the compounding pharmacies was released to the public in 2013, the Texas prison system has worked to keep the names of the current provider or providers secret.
The names of the pharmaceutical companies providing lethal injection drugs were long made public in Texas, and Texas Attorney General Greg Abbott has issued rulings confirming that drug supplier names are public information. That changed, however, when TDCJ was forced to turn to compounding pharmacies.
Last May, Abbott, in the midst of his own campaign for governor, sided with TDCJ after the agency secured a "threat assessment" from the Texas Department of Public Safety stating that the pharmacies "by design are easily accessible to the public and present a soft target to violent attacks." If the agency names the pharmacy-supplier, DPS reasoned, it would present a "substantial" threat of physical harm to the pharmacy.
Levin and other attorneys for death row inmates have argued that compounded drugs subject condemned inmates to cruel and unusual punishment which is barred by the Eighth Amendment.
The drugs that compounding pharmacies mix are not approved by the federal Food and Drug Administration. Compounding pharmacies themselves are licensed not by the FDA, but by individual state boards of pharmacies.
In the past two years, executions have taken longer, raising questions about the purity of these "compounded" drugs, as states begin using never before used "execution" drugs like midazolam to replace older lethal cocktails now unavailable to them. Some are using compounded drug and questions are being raised about the purity and efficacy of these drugs.
Last April in Oklahoma, death row inmate Clayton Lockett had a heart attack 43 minutes after the sedative midazolam was used for the first time in that state's execution protocol. Before the execution, Oklahoma had said it was moving to compounded drugs, however, the drugs used in Lockett execution were manufactured. An official autopsy ruled he died from the lethal drugs, not the heart attack.
*Editor's note: In an earlier version of this story it was reported that Oklahoma used compounded drugs to execute Clayton Lockett. While Oklahoma officials had said they were going to purchase compounded lethal execution drugs, they used manufactured drugs in Lockett's execution.