U.S. first fentanyl execution halted; Nevada illegitimately acquired drugs, court said
Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days.
The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.
Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order.
“If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.
The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.
The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.
Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”
“If people say they’re going to kill me, get to it,” he told the newspaper.
His attorney, Thomas Ericsson, told CNN that his client wants to be executed.
Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence.
“Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.
Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.
The Wednesday execution would be Nevada’s first in 12 years, after Daryl Mack was executed in 2006, and the first to take place in a new execution facility at Ely State Prison. Lethal injection is the only method of capital punishment that Nevada uses.
Company doesn’t want midazolam used in executions
Many drug companies don’t want their products used in executions and have restricted access to products for this purpose. It has resulted in states scrambling to find legally obtainable lethal injection drugs.
“Alvogen has undertaken controls to avoid diversion of this product for use in execution protocols,” the company states on its website concerning midazolam. “In furtherance of this effort, Alvogen does not accept direct orders from prison systems or departments of correction.”
The use of midazolam remains controversial, as death penalty critics have long argued that it’s not a painkilling anesthetic and that the condemned would feel tortuous pain from the drugs that come next.
The drug was used in the execution of Joseph Wood in 2014, who took nearly two hours to die, and led Arizona to stop using midazolam. Earlier that year, another inmate, Clayton Lockett, had been injected with midazolam, but instead of becoming unconscious, he twitched, convulsed and spoke. The execution in Oklahoma was halted, but Lockett died after 43 minutes.
In 2015, the US Supreme Court ruled that the use of midazolam in lethal injections is not a violation of the constitutional ban on cruel and unusual punishment.
Fentanyl is part of the mixture
Nevada announced last fall that it was preparing to use fentanyl in Dozier’s execution.
The news divided experts. Josh Bloom, senior director of chemical and pharmaceutical sciences for the American Council on Science and Health, told CNN in September that the decision left him “flabbergasted.”
“You got something that’s killing hundreds of people a day across the United States, and you got prisons who can’t get death penalty drugs, so they’re turning to the drug that’s killing hundreds of people across the United States,” he said. “This sounds like an article from the Onion,” referring to a news satire website.
Others said that given the drug’s lethality, the state’s decision wasn’t shocking.
Nebraska is also considering the use of fentanyl in combination with other drugs for executions, according to the Death Penalty Information Center.
The third drug, cisatracurium, was the subject of an appeals process last year in Dozier’s case.
Dozier had been scheduled for execution in November, but a district court judge had ruled that cisatracurium couldn’t be used in the execution over concerns about the muscle relaxant, which could hide signs of pain.
That case wound up in the Nevada Supreme Court, where the justices unanimously overturned the district judge’s ruling in May, according to CNN affiliate KSNV. That decision paved the way for Dozier’s scheduled execution.
Dunham, the Death Penalty Information Center official, said that if cisatracurium is used in the the Nevada execution, it would be the first time that a state publicly acknowledged using it to execute an inmate.
“It is possible another state may have previously used cisatracurium in an execution without having publicly announced it, but as far as we know, that hasn’t happened,” he said.