A district judge in Texas ruled last week that the state must disclose the pharmacy that supplies it with lethal injection drugs because that information is public. It shouldn't be a surprising ruling. From whom the government makes its purchases generally ought to be public information.
But Texas, and other states with the death penalty, all of whom now use lethal injection as their primary mode of execution, would prefer its drug suppliers remain confidential. The Texas Department of Criminal Justice will appeal the ruling. A spokesperson explained, via the Texas Tribune:
"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."
Texas isn't the only state trying to keep the identity of its drug supplier secret. A bill on its way to passage in Ohio would allow companies that provide the state with drugs for lethal injections to apply for anonymity, which would be granted for 20 years. It also automatically covers individuals involved in the process of executing an individual. And in Tennessee, the question of whether the identity of lethal injection drug suppliers should be kept confidential has reached the Supreme Court.
As Jacob Sullum has argued, the use of lethal injection and the concomitant issue of drug supplies is a distraction from the issue of whether the State ought to put people to death for any crimes. As Sullum writes, the lethal injection serves to "sanitize" the death penalty. Were the state to hire someone who puts bullets in the heads of death row inmates or strings them up, acquiring bullets or rope would not present an issue. But such methods of execution would also reveal the brutality of the death penalty to those who prefer not to consider it.
That states aren't comfortable disclosing from whom they purchase their death drugs suggests a great deal of opposition to the death penalty, opposition that manifests not just as public opinion but as economic and political activity. That activity's an important part of the process of policy making, and states shouldn't try to frustrate it to prevent change.