The Nevada attorney general’s office has made its final argument of the year to the state’s high court in a drawn-out legal battle over prison execution drugs.
In court papers filed this week, the last filed in the case under outgoing Attorney General Adam Laxalt, the Nevada Department of Corrections argued that a judge’s ruling barring a specific sedative from use in lethal injection could ultimately end capital punishment in the state.
Drug maker’s Alvogen sought the order to prevent midazolam from being used in the planned execution of Scott Dozier, a Nevada inmate who has requested his death sentence be carried out. Lawyers for the Ely State Prison have argued that they can only perform capital punishment with the drugs designated in a lethal injection protocol.
Deputy Solicitor General Jordan Smith elaborated on that point in Thursday’s filing.
“If third-party business interests can file these lawsuits, the death penalty is effectively dead,” he wrote.
“Any court order that prevents the state from using its chosen combination of drugs is, in substance, a stay of execution,” Smith added, “even if there were other drugs for purchase (and there’s not).”
Dozier, who was sentenced to die in 2007, would be the first inmate executed in the state in more than a dozen years.
Unless the state’s attorney general-elect, Democrat Aaron Ford, drops the appeal, the Supreme Court is expected to hear oral argument in the dispute next year, though a date has not been set.
While Ford has expressed opposition to the death penalty, he has not said whether he plans to continue to pursue the appeal.
Medications to be used in the execution cocktail on hand at the prison expire in February and, Smith wrote, “it is no small task to obtain a supply of lethal injection drugs, let alone substitute drugs once they expire.” He pointed out that in 2016, the prison system asked more than 200 potential drug makers for bids and received no response.
Meanwhile, a federal judge has postponed a hearing set for next week in a separate case where attorneys for Dozier have asked the prison system to stop the practice of isolating him from the general prison population.
Federal public defenders representing the condemned man wrote in a Thursday filing that he was unable to speak with his lawyers while he was on suicide watch at the prison.