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Lawmaker Says Death Penalty Could End if Drug Suppliers Revealed

If the names of the compounding pharmacies providing execution drugs to Texas officials are made public, it could end the death penalty, state Rep. John Smithee told a house committee on Wednesday.

The view of Texas' execution chamber from a witness viewing room.

If Texas has to tell the public who it's buying lethal execution drugs from, it might have to stop putting inmates to death, state Rep. John Smithee told a House committee on Wednesday.

"We're going to reach the point … where we can't conduct any execution, where we can't carry out capital punishment in Texas," the Amarillo Republican told members of the House Government Transparency and Operation Committee as he explained his bill to keep the identities of lethal drug suppliers secret.

The state of Texas' drug cache is already dangerously low, Smithee said, largely because the compounding pharmacies that make lethal injection drugs fear threats of violence if they are identified. Texas had to start buying its supply of made-to-order drugs from compounding pharmacies in 2013, when manufacturers began refusing to sell their products for executions.

"Many of these vendors who supply these doses to the state have refused to do it any further," Smithee said. "It's just not worth the risk of violence."

In 2013, after the Texas Department of Criminal Justice revealed that The Woodlands Compounding Pharmacy provided execution drugs, the company immediately stopped after the owner said he was threatened. The following year, Texas Attorney General Greg Abbott sided with TDCJ officials, concluding that the names of compounding pharmacies could be kept secret, even though such information had long been public. A Travis County judge last December ruled that the state's prison system must make the providers public, adding more fuel to the debate.

If Texas wants drugs, the compounding pharmacy community is demanding anonymity, Adrienne McFarland, an attorney with the Texas attorney general's office, told the committee.

"Unless they have strict protection that they will not continue to provide the drugs," she said. "It's becoming increasingly difficult to carry out execution, which is to say carry out state law."

Smithee's House Bill 3846 would keep the names of providers secret, as well as names of the individuals carrying out an execution. (As a policy, the state has never released the names of its execution team since the death penalty was reinstated in 1982.)

But Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, told committee members the drug provider names should be made public.

"The citizens in Texas really need the information to scrutinize how this is being carried out," she said.

And Stacy Allen, an attorney with Jackson Walker representing the Texas Association of Broadcasters, told committee members that if threats to lethal drug providers are the problem, they should pass a bill making the threats a crime.

"This is the wrong answer," he said. 

For the past few years in Texas and nationwide, lawyers for death row inmates have fought in court to keep the names of drug providers public. 

Until 2011, the names of drug manufacturers who provided execution drugs were released to the public in Texas. But that changed once large European drug manufacturers stopped selling the drugs to U.S. prisons, and states were forced to switch execution formulas and turn to smaller providers of execution supplies: compounding pharmacies that can legally mix batches at their facilities.

The U.S. Supreme Court is expected to re-examine lethal injection drugs when it takes up an Oklahoma case this spring.

Smithee's bill was left pending in committee just a few hours before Texas executed Manuel Garza Jr. for the 2001 fatal shooting of a San Antonio police officer during a struggle. Garza is the sixth inmate this year to be executed and the 524th since capital punishment was reinstated by the U.S. Supreme Court in 1976. 

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