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State Moves to Make Execution Drug Suppliers Secret

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Prosecutors say that Derrick Dewayne Charles did what he did because he was angry that his 15-year-old girlfriend's mother told police he was having sex with a minor. The 19-year-old from Houston would later argue that puffing on some embalming fluid-soaked pot triggered wild hallucinations that led to the murder of his girlfriend and her parents.

Unless his appeals lawyer can convince the U.S. Supreme Court he's too mentally ill for execution, Charles will die by lethal injection tonight, nearly 13 years after he dropped a television on his girlfriend's head and strangled her parents to death.

And with that, Texas will have only enough lethal-injection juice to kill one more inmate before the state's forced to switch to another lethal drug or stall upcoming executions. Or, Texas could just buy more pentobarbital, the state's current death drug of choice, from another secret dealer — an option that will be open to state officials should a proposal winding through the Texas Senate this week ultimately reach the governor's desk.

Ever since a Woodlands compounding pharmacy was outed as the Texas Department of Criminal Justice's execution drug supplier a couple years ago (thanks to a public records request from the Associated Press), state officials have argued that Texas's lethal-injection drug dealers should not be publicly identified. In pushing for secrecy, state officials have basically argued two main points. First, TDCJ officials have insisted that releasing information about the state's pentobarbital supply would create "a substantial risk of physical harm" to pharmacies supplying the drug. Second, compounding pharmacies wiling to sell the state execution drugs in secret clearly won't do so in public, and state officials argue that public pressure from anti-death penalty groups could create a de facto moratorium on capital punishment in Texas if officials can't buy the drugs in secret. 

Neither of those arguments swayed a state district court judge who looked at the issue last year. In December, Travis County district court Judge Darlene Byrne ruled in favor of three attorneys representing death-row inmates who had sued TDCJ after the agency refused to release the name of the compounding pharmacy that supplied the state with lethal injection drugs. While Judge Byrne has ordered TDCJ to disclose the name of its supplier, the case is currently tangled up in the appeals process. 

The ruling in that case could be moot, however, should a proposal by Houston Republican Sen. Joan Huffman make it through the Legislature this session. Huffman's SB 1697, which passed a preliminary vote in the Senate 28-3 on Monday, would change state law to make it legal for Texas officials to withhold the name of its execution drug suppliers. "It's having a chilling effect on pharmacies wanting to provide these substances," Huffman told the senate on Monday, according to the Chron. Huffman insists that if pharmacies' identities aren't protected, Texas will no longer be able to carry out the death penalty. 

Attorneys for death-row inmates, meanwhile, argue that secrecy makes it impossible to ensure that the state can provide a quick, painless execution in line with the Eighth Amendment prohibition on cruel and unusual punishment. They reference the executions of Michael Lee Wilson in Oklahoma (who, while strapped to the gurney, said, "I feel my whole body burning"), Dennis McGuire in Ohio (who, according to reports, struggled and made guttural noises, gasped for air and choked for about 10 minutes before dying), or last year's problematic execution of Clayton Lockett in Oklahoma (Lockett regained consciousness during his execution, writhed, moaned, groaned and took 43 minutes to die).

The House has yet to take up its version of Huffman's bill. 

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