Nevada's 1st inmate execution in 11 years was postponed Thursday after a state court judge ordered a paralytic drug removed from a never-before-used lethal injection plan that also includes the first use by a state of the powerful opioid fentanyl.
Prisons chief James Dzurenda called off the execution that had been set for Tuesday for twice-convicted murderer Scott Raymond Dozier after a solicitor for the state attorney general's office said the order would be appealed to the Nevada Supreme Court, prisons spokeswoman Brooke Keast said.
Dozier has given up appeals and repeatedly told Clark County District Court Judge Jennifer Togliatti he wants his death sentence carried out.
The judge said before issuing her order that she was "loath to stop" the process but was concerned the state plan to administer the 3 drugs could leave Dozier aware of pain and struggling with "air-hunger."
The state had planned to administer the muscle paralytic cisatracurium after injecting Dozier with high doses of the sedative diazepam and with fentanyl to depress and stop his breathing.
The judge pointed to testimony last week from Dr. David Waisel, a Harvard University anesthesia professor and pediatric anesthesiologist at Boston Children's Hospital. He said the paralytic should not be needed if the other 2 drugs are delivered properly in the lethal amounts in the state protocol.
"It's for the Supreme Court to decide," Togliatti said Thursday. "They're going to have to be the court to make that determination that we as a state are OK with a paralytic."
Togliatti said the execution could go forward with a 2-drug combination. But, "If the state of Nevada is not comfortable with the fentanyl and diazepam alone, then it supports the argument that (cisatracurium) is being used for a mask and he could suffer," she said.
Dozier's execution can still happen once the state Supreme Court rules, Togliatti said.
She set a Dec. 7 date to check the status of the case.
Waisel was hired by David Anthony, a deputy federal public defender who Dozier allowed to review the untried 3-drug protocol.
Anthony contended the paralytic was being used not as a substitute for a heart-stopping drug like most death-penalty states use, but to prevent witnesses from seeing if Dozier experiences an unconstitutionally inhumane death.
Assistant state Solicitor General Jordan Smith did not present testimony from Dr. John DiMuro, an anesthesiologist and the state's chief medical officer who developed the diazepam-fentanyl-cisatracurium protocol.
DiMuro resigned last week from his position as the state's top doctor, but provided an affidavit to the court saying his departure had nothing to do with Dozier's execution.
DiMuro's brother and lawyer, Christopher DiMuro, said his brother carried out an assignment to develop an execution method using drugs that Nevada could obtain.
Invoice records show the drugs were delivered in late May to Nevada prisons from the usual pharmacy supplier, Cardinal Health, at a cost of $482.52. A Cardinal Health spokeswoman didn't directly say whether the pharmaceutical wholesaler knew the intended use for the drugs.
John DiMuro wouldn't agree to an interview, Christopher DiMuro said, but he wouldn't disagree with Waisel that the paralytic could be unnecessary if the 1st 2 drugs are properly delivered at fatal doses.
"John is not on one side or another about the death penalty," the brother said from New Jersey.
Dozier also used the name Chad Wyatt. He would become the 1st person put to death in Nevada since 2006, when Daryl Mack asked to be put to death for his conviction in a 1988 rape and murder in Reno.
His would be the 1st lethal injection in a new execution chamber at Ely State Prison, 250 miles north of Las Vegas. It was completed in November 2016 at a cost of about $854,000.
Source: Associated Press, November 10, 2017
Experts weigh in on use of paralytic drug in executions
Nevada's 1st execution in 11 years was delayed after a Las Vegas judge decided Thursday to strike a controversial paralytic drug from the state's never-before-used 3-drug lethal injection plan.
Clark County District Judge Jennifer Togliatti expressed concerns over the effects the paralytic drug would have on death-row inmate Scott Dozier.
Experts testified the drug would cause Dozier to suffocate to death and mask his possible suffering if the other 2 drugs, fentanyl and diazepam, were administered incorrectly.
Dozier, 46, who was twice convicted of murder, voluntarily waived his right to appeal his death sentence after living behind bars for more than a decade. His execution was scheduled for Tuesday night at Ely State Prison.
Nevada ACLU launches petition to stop upcoming execution of Las Vegas murderer
On Thursday, the Nevada Department of Corrections announced a stay of execution, and it was unknown when Dozier's sentence would be carried out.
A lawyer for the state attorney general's office said they plan to appeal the judge's order with the Nevada Supreme Court.
But the debate over the use of a paralytic drug in lethal injection executions is nothing new. It's an issue that's been talked about for 40 years since Oklahoma adopted lethal injection as a means of execution - a year after the U.S. Supreme Court reinstated the death penalty in 1976.
Many death penalty experts argue paralytic drugs can lead to a cruel and unusual death, which would go against the Eighth Amendment of the U.S. Constitution.
The Reno Gazette Journal reached out to several experts to discuss why the use of a paralytic drug has created such a huge controversy among state officials, attorneys and physicians.
Lethal injection: A 40-year battle
In 1977, Dr. Jay Chapman developed a 3-drug protocol to be used in Oklahoma, which became the 1st state to adopt lethal injection execution. The drug cocktail included the sedative sodium thiopental; a paralytic agent, pancuronium bromide; and potassium chloride, which stopped the heart.
Up until 2009, each state implemented similar protocols using those 3 drugs. But many pharmaceutical companies stopped manufacturing and selling the drugs, leading to a shortage, according to Deborah Denno, a professor at Fordham University School of Law.
Denno has written 26 articles about capital punishment. She said she looked at the dosages states were using in lethal injection executions for a nationwide survey she conducted in 2001 and 2005.
"The states were going everywhere and in every which way because they couldn't find this initial drug that rendered the inmate unconscious," Denno said, referring to sodium thiopental. "And in some of these cases, they weren't giving nearly enough drugs to make somebody unconscious."
And that presented a problem, according to Megan McCracken, an attorney for the Death Penalty Clinic at UC Berkeley School of Law.
"From a legal perspective, we know it's beyond question that if the person is conscious or aware, that would lead to an excruciating death," McCracken said. "That would violate the Constitution."
Lethal injection has resulted in several botched executions - most recently in Ohio, Oklahoma, Arizona, Georgia and Alabama within the past 3 years, according to the Death Penalty Information Center. Several death-row inmates were seen gasping for air or writhing in pain.
Paralytic drugs affect the way skeletal muscles relax and contract. It paralyzes the diaphragm, which controls breathing.
If the prisoner isn't rendered unconscious, they can suffocate to death.
The paralytic was meant to preserve the dignity of the prisoner, according to Robert Dunham, executive director of the Death Penalty Information Center, a national nonprofit organization that provides information and analysis on death penalty issues.
"The paralytic performs no legitimate function in the execution itself," he said. "It's so that it's less difficult for the eyewitnesses to watch."
Death by suffocation: Is it cruel?
None of drugs chosen by state officials to be used in the lethal injection were designed to kill, according to Dr. Joel Zivot, an associate professor of anesthesiology and surgery at Emory University School of Medicine.
Fentanyl is an opioid designed to take away symptoms of pain. Diazepam is a drug similar to Valium used to treat insomnia and anxiety. It's also used in non-invasive procedures, but it does nothing to affect awareness or consciousness.
The 3rd drug, the paralytic cisatracurium, is used on patients undergoing surgery to prevent muscle contraction.
Zivot said cisatracurium would have paralyzed and then ultimately killed Dozier.
"So, essentially what this is - to be clear - is death by suffocation," Zivot said.
Other medical experts like Dr. Susi Vassallo, a professor of emergency medicine at New York University School of Medicine, argues fentanyl is the killing drug.
"In this case, we have thousands of deaths from fentanyl, and it clearly works," she said, adding fentanyl is at the center of the opioid epidemic in the U.S. "Then why add valium to that? Why paralyze them if (fentanyl) is so effective?
"There's no pain, you're unconscious and you stop breathing. It's perfect."
The use of a paralytic drug could prevent witnesses - and the public - from knowing whether Dozier's execution was unconstitutional.
"It's the witnesses' responsibility to observe the execution and then decide whether or not it looks cruel," Zivot said.
Constitutional problems
Dunham, who previously worked as an attorney in death penalty cases, said the way states carry out executions raises questions about possible constitutional violations.
He said the Supreme Court has allowed executions to move forward using drug combinations that have been known to be problematic. The Supreme Court has also allowed states to execute prisoners while they were in the midst of litigation, Dunham said.
Another problem is the state execution protocols.
"A botch implies that things did not go as planned, and that somehow the state failed to follow this protocol," Dunham said.
"It's the protocol that's the problem," he said. "You can botch it on top of that, which is always a risk."
Experts agree that the execution protocol is key in determining whether an execution will be lawful. The protocol would include information on the order the drugs will be administered, the dosages and who will be carrying out the execution.
But the Nevada Department of Corrections has yet to release the state's execution protocol to the public, despite requests from media and local civil rights groups.
Spokeswoman Brooke Keast previously told the Reno Gazette Journal that the protocol was under seal. It was unknown when it would be released following Togliatti's order to remove the paralytic drug from the state's execution plan.
Federal public defenders representing Dozier have pushed to ensure that his execution be done humanely.
Dunham said the U.S. Supreme Court has ruled that a death-row prisoner must not only prove their execution method is cruel, but also offer an alternative.
"It's virtually impossible for the defendant to meet the burden because the states in charge of carrying out these executions hide the execution behind a veil of secrecy," he said.
Nevada lawmakers are debating whether or not to pass a bill that would end the state's death penalty. Supporters cite a 2014 audit report that says the death penalty costs about $500,000 more than non-death penalty cases.
Dunham said lethal injection is "essentially a medical practice."
"You're inserting IV lines, and you're often dealing with the sobriety of drug abusers or inmates who, because of various health reasons, don't have accessible veins," Dunham said. "And medical personnel are not permitted to participate because that's unethical."
"So, you have people who are not as well-trained dealing with setting IVs ..." he said.
He said an execution would not be considered unconstitutional unless the courts rule it as such.
"The medical evidence is the medical evidence, and there's going to be a certain amount of pain involved in an execution no matter how it's carried out," Dunham said. "The question is: How much is acceptable?"
Source: Reno Gazette-Journal, November 10, 2017
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