Published: Thu, July 12, 2018

Nevada judge halts use of drug in planned execution

Nevada judge halts use of drug in planned execution

Nevada plans to carry out the first execution using fentanyl, a drug at the heart of the U.S. opioid epidemic, on Wednesday.

Death row inmate Scott Dozier appears before District Judge Jennifer Togliatti during a hearing about his execution at the Regional Justice Center on September 11, 2017, in downtown Las Vegas.

The midazolam would be used to sedate Dozier before he is killed using fentanyl, a drug at the forefront of the U.S. opioid epidemic that was also allegedly obtained illicitly. But Dozier has waved appeals and said he wants to die so the combination of medicines to be used to kill him has not been examined in court.

A spokeswoman for Nevada Department of Corrections, Brooke Santina, told the Reno Gazette Journal the agency would not comment on the pending litigation. Today's execution would be the first time in 12 years that Nevada is carrying out the death penalty.

But the company did not immediately ask to formally join Alvogen's lawsuit.

The pharmaceutical company urged a judge to block the use of midazolam, saying the state of Nevada obtained the product through "subterfuge" for unapproved purposes.

"The state issued 247 requests for proposals on September 2 after its stockpile of at least one drug used in executions had expired. Nevada Department of Corrections to use our midazolam product in an execution, we are exploring all potential avenues, including legal recourse, to prevent the improper use of our product in this particular execution", Alvogen spokesman Halldór Kristmannsson said.

The state intends to use a synthetic opioid - involved in more than 20,000 overdose deaths in 2016 alone - to kill Scott Dozier, a double murderer, after finding it hard to obtain other drugs for Nevada's first execution in 12 years because of opposition from pharmaceutical manufacturers.

There's a limit to how much artwork and physical exercise a person can do in prison, Dozier said in court hearings and letters to the Las Vegas judge who postponed his execution.

Las Vegas defense attorney Scott Coffee, who analyzes death penalty cases across the country, pointed to the drug company's reference to irreparable harm and said that even if the judge denies Alvogen's request, the company could pursue the claim with a higher court.

The sedative is meant to render the inmate unconscious before he is administered the synthetic opioid fentanyl and then paralytic agent cisatracurium.

Nevada obtained the midazolam after its supply of another sedative, diazepam, commonly known as Valium, expired. Fentanyl is used to slow the heart rate, sedate and continue to suppress breathing, and finally Cisatracurium to paralyze the inmate before death. He said drugs ordered by the state prison system are regularly shipped to Las Vegas.

"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.

In court papers, Alvogen also cited the risk of a botched execution, citing instances in Alabama, Arizona and Oklahoma in the past few years in which inmates were left gasping or snorting, appeared to regain consciousness or took an unusually long time to die.

"Life in prison isn't a life", the Army veteran and methamphetamine user and dealer told the Las Vegas Review-Journal recently.

There's a limit to how much artwork and exercise a person can do in prison, Dozier said in court hearings and letters to Clark County District Judge Jennifer Togliatti, who postponed his execution past year.

Dozier was sentenced to death in 2002 after killing and dismembering 22-year-old Jeremiah Miller.

In 2005, Dozier was sentenced to 22 years in prison for shooting 26-year-old Jasen Greene, whose body was found in 2002 in a shallow grave outside Phoenix.

His decapitated torso was found in a suitcase. A witness testified Dozier used a sledgehammer to break the victim's limbs so the corpse would fit in a plastic storage container.

The ACLU has also filed a lawsuit this month seeking records related to the state's execution protocol.

Although Dozier dropped attempts to save his own life, he allowed federal public defenders to challenge the execution protocol.

They argued that the untried three-drug combination would be less humane than putting down a pet.

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