As courts delay Nevada execution, Texas prepares for eighth of 2018

Nevada last week was forced by a judge to postpone the execution of its fifth death row inmate since 2000. On Tuesday, Texas plans to kill its eighth condemned prisoner this year.

Both states use lethal injection to impose the ultimate punishment, but that’s where the similarities end.

Since 2012, Texas has used a single drug — the powerful barbituate pentobarbital — to impose the capital penalty.

Nevada planned to kill convicted murderer Scott Dozier on Wednesday with a never-used mix of the sedative midazolam, the opioid painkiller fentanyl and the paralytic cisatracurium. Use of each of the three drugs in a state-sanctioned killing is controversial in its own right, but midazolam in particular has been linked to several so-called “botched” executions, prompting some states to abandon its use.

Dozier’s execution was halted by a lawsuit filed Tuesday against the state by midazolam manufacturer Alvogen Inc. Alvogen’s lawsuit complained the sedative was obtained “by subterfuge with the undisclosed and improper intent to use it for the upcoming execution in complete disregard of plaintiff’s rights.” It argued the company would suffer “immediate and irreparable harm” should its life-saving drug be used to kill.

Dozier was set to die in November, but District Judge Jennifer Togliatti ruled against the use of cisatracurium in combination with fentanyl and diazepam, or brand-name Valium, halting the execution. When the state’s Valium supply expired, it was replaced with midazolam, another sedative.

No answer to ‘the why question’

Both the attorney general’s office and the state Department of Corrections declined to comment on the untested drug cocktail.

Robert Dunham, executive director of the nonprofit Death Penalty Information Center, said shortages of drugs used in executions have forced states to scramble to carry out death sentences, but lack of transparency makes it hard to ascertain why they decide to use certain drugs over others.

“Nobody can answer the ‘why’ question,” Dunham said. “The appearance is that states are desperate to carry out execution by any means.”

The center believes Texas gets its pentobarbital supply from undisclosed compounding pharmacies that mix medications to suit a patient’s needs, Dunham said. In that case, the compounding pharmacy acts as the manufacturer and would not sue to prevent the use of the product in an execution.

Many states have used so-called “drug cocktails” in lethal injection — though not the one Nevada had planned to use, said Mark Decerbo, a University Medical Center clinical pharmacist and professor at Roseman University of Health Sciences in Henderson.

In many cases, a barbiturate would render the person unconscious, slow respiratory rate and take away feelings of pain, he said. A paralytic would paralyze the body’s skeletal muscles, just not the heart. Then, a high dose of potassium would do the killing. He said the latter is equated to “liquid fire” if a person isn’t properly sedated.

“(The paralytic) was mainly just to kind of avoid the visual effects of someone lashing around,” Decerbo said, masking symptoms of death by lethal injection, like convulsions.

But Nevada and some other states have dropped the use of potassium, instead relying on the sedatives, painkillers and paralytic to snuff out life in combination.

The one-drug approach

Pentobarbital, the drug used in Texas, can do it all, he said. It just does it faster than other barbiturates.

“Obviously, with executions, they want it to be rapid,” he said.

That doesn’t mean the pentobarbital is the perfect killing drug. If the dose isn’t high enough, or the drug is manufactured improperly, an execution could be torturous, Dunham said.

Midazolam, the sedative planned for use in Nevada’s drug cocktail, has been linked to several so-called “botched” executions where prisoners apparently struggled in the minutes leading up to their death.

Decerbo said midazolam by itself might leave a person conscious and is less likely than barbiturates to decrease breathing rate. And it doesn’t combat pain.

Coupled with fentanyl, that might not be an issue, Decerbo said.

“As everyone knows from the opioid crisis, fentanyl will arrest breathing,” he said. It’s also a painkiller.

As to whether it would render someone unconscious, Decerbo said “you can argue it both ways.”

“That seems to be the crux of the debate,” he said, adding, “… In the end, if administered appropriately, I think it will work.”

First manufacturer to sue

Alvogen is the first drug manufacturer to sue a state for the use of a drug in carrying out the death penalty, Dunham said, though drug distributor McKesson Corp. sued the Arkansas Department of Correction in April 2017 for its planned use of vecuronium bromide, an anesthetic, for an execution.

Similar to Alvogen, McKesson argued the drug was obtained for medical use, not for use in lethal injection. That lawsuit was ultimately rejected.

Death row inmates around the country also have sued their states’ corrections departments, claiming their lethal injection protocols are inhumane. In Alabama, for example, eight inmates sued the state claiming the lethal injection protocol, which included the drug midazolam, was unconstitutional. The prisoners reached an agreement with the state and dropped their lawsuit. They are now scheduled to die by nitrogen gas instead.

Las Vegas attorney J. Malcolm DeVoy, who specializes in healthcare law, said that in addition to suffering harm to its reputation, Alvogen likely fears that the use of its drug to kill could make it harder to defend itself against lawsuits where plaintiffs claim misuse led to death.

“It changes the playing field for these companies to defend themselves,” DeVoy said. He added he agreed with Alvogen’s claim that its business could be harmed by a product’s use for a life-ending purpose, “but I don’t think it’s the whole story.”

Dozier, 47, told his family as early as 2011 that he wished to die. He told a Review-Journal reporter last week that he was “very disappointed” that the execution was halted.

Dozier was sentenced to 22 years in prison in 2005 after he was convicted of second-degree murder in Arizona. He later received the death penalty in Nevada for the killing of Jeremiah Miller, whose torso was found in a suitcase inside a trash bin at the Copper Sands apartment complex in the 8100 block of West Flamingo Road.

Contact Jessie Bekker at jbekker@reviewjournal.com or 702-380-4563. Follow @jessiebekks on Twitter. Review-Journal staff writer David Ferrara contributed to this report.