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Texas Can't Kill Prisoners Until It Says Where It Got Its Pentobarbital, Federal Judge Says [Updated]

Update: Never mind. An appeals court overturned Gilmore's decision.

Original post: There have been two significant developments since the Texas Supreme Court ruled Friday that the state doesn't have to say where it got the pentobarbital it will use to kill death row inmates Tommy Lynn Sells and Ramiro Hernandez-Llanas.

One is that the state of Texas, which had been rather vague but generally insisted that naming the supplier would put them in great danger, gave a specific example of a case in which that happened. This wasn't in Texas. When The Woodlands Compounding Pharmacy was revealed as the provider of the state's just-expired cache of drugs, it seems to have suffered nothing worse than angry phone calls and bad publicity. But it did actually happen.

"An individual threatened to blow up a truck full of fertilizer outside a pharmacy supplying substances to be used in executions," a Texas Department of Criminal Justice attorney wrote in a brief on Tuesday.

The bigger development is that a federal judge in Houston has halted the execution of Sells and Hernandez-Llanas on the grounds that they and their attorneys have a right to know the source of the pentobarbital that will soon be flowing through their veins, both in the interest of transparency and to make sure the state won't be running afoul of the constitutional prohibition on cruel and unusual punishment.

"Without some detail about the source of the drugs and the integrity of the testing, [Sells and Hernandez-Llanas] are prevented from raising a specific Eighth Amendment challenge to their executions," U.S. District Judge Vanessa Gilmore writes. "Until Plaintiffs have full disclosure of the product with which Texas will cause their death, they cannot fully develop a challenge to its process."

Texas did, two days before Sells was scheduled to die, offer defense attorneys a report assuring the purity and potency of the pentobarbital, but that's not enough, Gilmore says. The state has "masked information about the product that will kill them" and left out "important details allowing an assessment of the drug's efficacy."

Maurie Levin, an attorney for the inmates, sums it up nicely in a statement to The Associated Press: "This last-minute litigation and stays of execution would not be necessary if (TDCJ) had not ignored the rule of law and tried to shield this information from the public and the light of day."

Send your story tips to the author, Eric Nicholson.


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