Nevada to execute an inmate using a new, controversial drug combination

Blanche Robertson
July 12, 2018

Court spokesman Michael Sommermeyer says that some of the seven justices are in Chicago for a Nevada State Bar Association meeting, but that the court could meet by teleconference.

The state of Nevada had not yet appealed by midday. The state said it would explore whether it could appeal to the Nevada Supreme Court.

The order is the first time a drug company has successfully sued to halt an execution in the US involving one of its drugs.

Experts say it would be the first time the opioid fentanyl was used in a US execution.

The drug company that creates the sedative Midazolam, which was expected to be one of three drugs used in the execution, sued the State of Nevada and the Department of Corrections, claiming Alvogen was misled in what the drug would be used for.

The execution of 47-year-old Dozier is scheduled for Wednesday night.

A spokeswoman for Nevada Department of Corrections, Brooke Santina, told the Reno Gazette Journal the agency would not comment on the pending litigation. State officials could appeal right away to the Nevada Supreme Court.

According to the pharmaceutical company, the state obtained their drug illegally, and Alvogen wants that drug returned to them.

The pharmaceutical company raised concerns that the drug could lead to a botched execution, citing cases that seemingly went awry elsewhere around the country.

"And contrary to the state's belief, the state is just as much bound to the law as is a private citizen", Todd Bice, the Attorney for Alvogen said. The judge, who said she needed time to read the lengthy complaint and the accompanying application for a temporary restraining order, scheduled another hearing for 9 a.m. Wednesday. Gonzalez set another hearing for September 10.

"Alvogen has undertaken controls to avoid diversion of this product for use in execution protocols", the company states on its website concerning midazolam.

"What we're seeing from the drug companies is rather than simply protesting that the drugs have been improperly obtained, they're going into court to try to protect their corporate interests and to try to protect the integrity of their medicines", Death Penalty Information Center Executive Director Robert Dunham said in an interview.

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The previous challenge, filed past year by a different company in Arkansas, was ultimately unsuccessful in stopping that execution.

In the past, states with the death penalty typically used a cocktail of drugs that included sodium thiopental for lethal injection.

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

Nevada announced last fall that it was preparing to use fentanyl in Dozier's execution.

Jordan T. Smith, an assistant Nevada solicitor general, countered at Wednesday's hearing that Nevada didn't put up a "smokescreen" or do anything wrong in getting the drugs.

Alvogen's midazolam was substituted in May for Nevada's expired stock of diazepam, commonly known as Valium.

"I've been very clear about my desire to be executed ... even if suffering is inevitable", he said in a handwritten note to a judge who postponed his execution in November over concerns the untried drug regimen could leave him suffocating, conscious and unable to move. Fentanyl is used to slow the heart rate, sedate and continue to suppress breathing, and finally Cisatracurium to paralyze the inmate before death.

Mr Bice said that Alvogen does not take a position on the death penalty itself but opposes the use of the drug in a way that is fundamentally contrary to the drug's objective - saving and improving patients' lives. "It's extremely experimental", as Amy Rose of the American Civil Liberties Union puts it.

Dozier has said that he wishes to be executed and that being put to death is better than spending the rest of his life in prison.

Dozier was sentenced to death over the first-degree murder in 2002 of Jeremiah Miller, whose dismembered body was found in a trash bin in Las Vegas.

The Nevada authorities refused to make public how they obtained the fentanyl and other drugs, but last week the ACLU won a court ruling forcing the department of corrections to hand over invoices. Miller's head was never found and he was identified by tattoos on his torso. A witness there testified that Dozier used a sledgehammer to break Greene's limbs so the corpse would fit in a plastic tote that Dozier used to transport methamphetamine, equipment and chemicals.

He did, however, let federal public defenders review and challenge the execution protocol drawn up a year ago by state medical and prison officials.

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