Updated June 18, 2021 - 5:52 pm
Lawyers for Zane Floyd, scheduled to die in fewer than 40 days for a massacre at a Las Vegas grocery store, say an untested combination of drugs planned for his lethal injection would amount to cruel and unusual punishment.
“Zane Floyd is in a unique position,” federal public defenders wrote in a court brief filed Friday, reiterating a request to stay the execution. “The State seeks to execute him using a novel execution protocol. Only one of the six proposed drugs and alternates has an established (though contentious) history of use in executions; the others have been used rarely, accidentally, or not at all.”
Ketamine, one of the drugs proposed by the Nevada Department of Corrections in a four-drug cocktail made public last week, has never been used in an American execution, according to the lawyers.
The plan calls for an injection of painkillers fentanyl or alfentanil, “depending on availability;” ketamine, an anesthetic; cisatracurium, a paralytic; and heart-stopping potassium chloride or potassium acetate, “depending on availability.”
“Each of the four drugs and two alternates in Nevada’s experimental protocol involve unnecessary risks,” Assistant Federal Public Defenders David Anthony, Brad Levenson and Timothy Payne argued. “These drugs combined create a substantial risk that Floyd’s execution will involve unconstitutional pain and suffering.”
Ketamine, the lawyers argued, could cause “excessive secretions from the mouth” and vomiting and lead to a burning sensation in Floyd’s veins and lungs.
Robert Dunham, executive director of the Death Penalty Information Center, which is critical of the administration of capital punishment but takes no stance on executions, said that using untried methods of lethal injection was “inherently a problem” in the effort to carry out Floyd’s sentence.
“Otherwise, it’s about vengeance, not about trying to administer the law,” he said. “And if it’s about vengeance, that’s all about social control, and it stops being an instrument of justice.”
Prosecutors seeking Floyd’s execution declined to comment on the request for a stay, and the attorney general’s office, which represents the prison system, had not filed a response to the brief as of late Friday.
Cisatracurium would be excluded in an optional three-drug protocol listed in the state’s execution manual.
Victims of 1999 shooting
Prison officials have not definitively said whether any of the drugs had been obtained, and a spokeswoman told the Las Vegas Review-Journal on Friday that the names of the drug manufacturers still were being withheld from the public.
Floyd shot and killed four employees — Lucy Tarantino, 60, Thomas Darnell, 40, Chuck Leos, 40, and Dennis “Troy” Sargent, 31 — and gravely wounded another, Zachary Emenegger, inside an Albertsons on West Sahara Avenue in June 1999.
He also was convicted of repeatedly raping a woman before the shooting. Now 45, he would be the first person executed in Nevada since 2006.
Nevada’s lethal injection protocol faced drawn-out legal scrutiny after another death row inmate, Scott Dozier, asked to be executed in late 2016.
Floyd’s lawyers argued that prison officials’ decision to make cisatracurium, the paralytic drug, optional pointed to its “superfluousness.”
As Dozier’s case lingered in the court system, a doctor testified that it was “unnecessary” and could mask suffering. Dozier killed himself in an Ely State Prison cell in 2019 before litigation in his case was resolved.
The use of potassium chloride or potassium acetate could cause Floyd to “suffer excruciating pain,” his attorneys wrote. Fentanyl or its alternative, they argued, could interfere with “consciousness checks” during the execution, described in the state’s manual as “an interpretable physical response” to “verbal stimulus” or a “medical grade pinch.”
Alternative execution methods
In previous court filings, Floyd’s lawyers said he favored a firing squad over lethal injection. On Friday, they argued that shooting Floyd would result in “nearly instantaneous death, be comparatively painless, and have a lower chance of a botched execution.”
The U.S. Supreme Court requires alternatives in order to challenge a method of execution. A second option the lawyers suggested was using a barbiturate such as pentobarbital, which recently has been used in federal executions, and “reliably induces and maintains a coma-like state that renders a person insensate to pain and necessarily precedes death.”
Floyd’s lawyers also argued that they should have more time to analyze the proposed lethal injection cocktail. The state’s prison director testified last month that he would prefer up to four months to prepare for an execution.
“Had the defendants developed a protocol and disclosed sufficient information to Floyd about the protocol when preparations for Floyd’s execution began months ago, a stay may not have been necessary,” the federal public defenders wrote. “And Floyd is not seeking to prevent the State from ever carrying out his sentence; he is instead seeking to enjoin the State from executing him unconstitutionally when there are alternatives available that significantly reduce the substantial risk of severe pain.”