Texas' top prosecutor: Drug source can be secret

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Texas' top prosecutor: Drug source can be secret
FILE - This July 25, 2014 file photo shows bottles of the sedative midazolam at a hospital pharmacy in Oklahoma City. Exactly one year after a botched lethal injection, attorneys for other Oklahoma death row inmates were set to ask the U.S. Supreme Court Wednesday, April 29, 2015 to outlaw a sedative used in the procedure — a ruling that could force several states to either find new execution drugs or change the way they put prisoners to death. (AP Photo/Sue Ogrocki, File)
In this Oct. 9, 2014 file photo, Department of Corrections officials are pictured in the witness room at right, outside the newly renovated death chamber at the Oklahoma State Penitentiary in McAlester, Okla. With executions in Oklahoma on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates. (AP Photo/Sue Ogrocki, File)
An unidentified Arizona Corrections Officer adjusts the straps on the gurney used for lethal injections at the Florence Death House at the Arizona State Prison at Florence (Ariz.) in this undated photo provided by the Arizona Department of Corrections. On Tuesday, Sept. 2, 2003, a federal appeals court overturned more than 80 death sentences in Arizona because a judge, instead of a jury, handed them down. Death sentences in Idaho and Montana also were affected. (AP Photo/Arizona Department of Corrections)
File - In this April 12, 2005 file photo is the death chamber at the Missouri Correctional Center in Bonne Terre, Mo. The Associated Press and four other news organizations filed a lawsuit Thursday, May 15, 2014 challenging the secret way in which Missouri obtains the drugs it uses in lethal injections, arguing the state's actions prohibit public oversight of the death penalty. The suit asks the state's department of corrections to disclose where it purchases drugs used to carry out executions along with details about the composition and quality of those drugs. (AP Photo/James A. Finley, File)
FILE - In this Nov. 2005 file photo, public information director Larry Greene is shown in the death chamber at the Southern Ohio Correctional Facility in Lucasville, Ohio. Ohio prison officials said Friday, Oct. 4, 2013, they are keeping their primary lethal injection drug in place despite the state's supply expiring, but they've added a second drug option for executioners to address the shortage. Prisons spokeswoman JoEllen Smith said the powerful sedative pentobarbital will remain Ohio's primary method of administering the death penalty. A policy posted to the prisons department's website listed a combination of midazolam and hydromorphone as an alternative if sufficient pentobarbital isn't available or if the existing supply "is deemed unusable" by the medical team. (AP Photo/Kiichiro Sato, File)
393846 06: A gurney and a electric chair sit in the death chamber of the Southern Ohio Correctional Facility August 29, 2001 in Lucasville, Ohio. The state of Ohio is one of the few states that still uses the electric chair, and it gives death row inmates a choice between death by the electric chair or by lethal injection. John W. Byrd, who will be executed on September 12, 2001, has stated that he will choose the electric chair. (Photo by Mike Simons/Getty Images)
393846 05: A view of the death chamber from the witness room at the Southern Ohio Correctional Facility shows an electric chair and gurney August 29, 2001 in Lucasville, Ohio. The state of Ohio is one of the few states that still uses the electric chair, and it gives death row inmates a choice between death by the electric chair or by lethal injection. John W. Byrd, who will be executed on September 12, 2001, has stated that he will choose the electric chair. (Photo by Mike Simons/Getty Images)
FILE - This is an undated file photo of the electric chair at the Tennessee State prison in Nashville. First used by New York State in 1890, it was used throughout the 20th century to execute hundreds and is still an option in eight states. Since 1976, 158 inmates have been executed by electrocution. It was considered humane on its introduction but resulted in many horrific executions over the years. (AP Photo, File)
This is a 1996 photo of Yellow Mama, Alabama's electric chair at Holman Prison in Atmore, Ala. Alabama Gov. Don Siegelman and Attorney General Bill Pryor want lethal injections legalized in Alabama, but only as a precaution in case the courts declare the electric chair unconstitutional. (AP Photo)
This undated photo provided by the Virginia Department of Corrections shows an electric chair. Larry Bill Elliott is scheduled to be executed by choice of electrocution Tuesday, Nov. 17, 2009 for the January 2001 shooting deaths of 25-year-old Dana Thrall and 30-year-old Robert Finch. (AP Photo/Virginia Department of Corrections)
This photo taken May 16, 2013, shows an electric chair on exhibit at the Texas Prison Museum in Huntsville, Texas. Between 1924 and 1964, 361 men died in the electric chair. Since the first execution by lethal injection in Texas in 1982 the state has executed 499 prisoners. (AP Photo/Pat Sullivan)
This is the interior of the gas chamber at the Nevada State Penitentiary in Carson City, Nev., seen 1936. (AP Photo)
FILE - In this June 18, 2010, file photo, the firing squad execution chamber at the Utah State Prison in Draper, Utah, is shown. In the wake of a bungled execution in Oklahoma last month, a Utah lawmaker wants to resurrect firing squads as a method of execution in his state. Rep. Paul Ray, a Republican from Clearfield, says firing squads would be a quick and humane way to put someone to death as lawsuits and drug shortages have hampered lethal injections in recent years. Ray plans to introduce his proposal during Utah’s next legislative session in January. Utah stopped allowing death-row inmates to choose execution by firing squad after 2004. Several inmates sentenced before that time have opted for firing squad executions but are appealing their sentences. Utah last used the method in 2010, when a firing squad of five police officers with .30-caliber Winchester rifles executed Ronnie Lee Gardner. (AP Photo/Trent Nelson, Pool, File)
The execution chamber at the Utah State Prison after Ronnie Lee Gardner was executed by firing squad Friday, June 18, 2010. Four bullet holes are visible in the wood panel behind the chair. Gardner was convicted of aggravated murder, a capital felony, in 1985. (AP Photo/Trent Nelson - Pool)
The execution chamber at the Utah State Prison is seen after Ronnie Lee Gardner was executed by firing squad Friday, June 18, 2010 in Draper Utah. Four bullet holes are visible in the wood panel behind the chair. Gardner was convicted of aggravated murder, a capital felony, in 1985.(AP Photo/Trent Nelson/Pool)
The execution chamber at the Utah State Prison after Ronnie Lee Gardner was executed by firing squad Friday, June 18, 2010. The bullet holes are visible in the wood panel behind the chair. Gardner was convicted of aggravated murder, a capital felony, in 1985. (AP Photo/Trent Nelson - Pool)
 A huge crowd of over 15, 000 people gathers around a scaffold to witness the public hanging of 22-year old Rainey Bethea August 14, 1936 in Owensboro, Kentucky. Public outrage over the manner of execution made Bethea's death the last public hanging in the country. (Photo by Newsmakers)
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DALLAS (AP) - Texas law enforcement officials are refusing to say what threats were behind a key letter that led the state attorney general to reverse his long-held position that the identity of Texas' execution drug provider should be made public.

The Texas Department of Public Safety's one-page letter was cited Thursday by the Texas Attorney General's Office, which ruled state prison officials could keep its provider a secret. On Friday, the Department of Public Safety called any details about threats "law enforcement sensitive information," refusing to say if any pharmacies were in danger or what the agency was doing to investigate.

Anti-death penalty advocates have accused Texas and other states of trumping up threats to avoid disclosing their providers. So far, state and local law enforcement agencies have said little publicly about why they feel pharmacies are in danger.

The state prison system has long argued that safety concerns required it to keep suppliers' information private. Three times, Attorney General Greg Abbott's office refused the Texas Department of Criminal Justice's requests, saying the agency hadn't done enough to prove a threat.

In one of those opinions, issued two years ago, the office said that "while we acknowledge the department's concerns, we find you have not established disclosure of the responsive information would create a substantial threat of physical harm to any individual."

But in Thursday's opinion reversing that position, Abbott's office cited Department of Public Safety director Steven McCraw's letter as proof that law enforcement believed a threat existed.

TDCJ requested the March 7 letter from McCraw, DPS spokesman Tom Vinger said. The letter says there were threats made against the Woodlands Compounding Pharmacy, a Houston-area facility that was identified in a previous open-records request as the state supplier.

"Pharmacies by design are easily accessible to the public and present a soft target to violent attacks," McCraw said in his letter.

The letter was key in the attorney general's reversal. Its Thursday opinion says it had to defer to DPS, "the law enforcement experts charged with assessing threats to public safety."

Abbott and McCraw declined to be interviewed Friday. Jason Clark, a TDCJ spokesman, did not return messages seeking comment Friday.

Vinger told The Associated Press in April that he was unaware of any investigations of threats against that pharmacy, and the local sheriff's office responsible for the pharmacy said it had not investigated any threats there, either. On Friday, Vinger declined to comment on whether DPS was aware of any threats or had conducted any investigation, saying in an email that it was "law enforcement sensitive information."

Unlike some other states arguing in court about drug secrecy, Texas law doesn't specifically say whether prison officials must disclose where they buy lethal injection drugs.

Death penalty states have been scrambling to find new sources of drugs after several drugmakers, including many based in Europe, refused to sell drugs for use in lethal injections. That's led several states to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.

Courts up to the U.S. Supreme Court have ultimately not halted an execution based on a state's refusal to reveal its drug supplier. The secrecy argument also was used ahead of a bungled execution last month in Oklahoma, though that inmate's faulty veins, not the execution drug, were cited as the likely culprit.

Maurie Levin, a prominent capital defense attorney, said Friday that she intended to challenge Abbott's opinion in court as part of ongoing litigation. She said McCraw's letter seemed "very generalized and not supported by any documentation."

"It is hard to accept a decision that is based on that kind of unsupported assertion, particularly when we're talking about matters this important," Levin said.
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