Nevada is at it again as it seeks to resume executions after a 15-year hiatus. The state wants to put Zane Michael Floyd to death for the 1999 murder of four people in a Las Vegas grocery store, and it plans to use a novel and untested cocktail of drugs to do so.
Depending on availability, Nevada officials say that Floyd’s execution could be carried out using either a three- or a four-drug cocktail. Neither combination has been tested for safety and reliability, and neither has been used in any other American execution.
Using them would make Floyd a human guinea pig and turn his execution into what death penalty opponents have rightly called a cruel and dangerous form of experimentation on persons who, no matter how heinous their crimes, deserve to be treated humanely. That is an ethical matter, but it is also a legal one: in the U.S., all are to be protected from cruel and unusual punishment, and Nevada officials have no way of knowing whether their proposed methods meet that standard.
The state’s proposed three-drug cocktail would mix the powerful opioid fentanyl, the sedative ketamine, and potassium chloride, which stops the heart and ends life. Fentanyl has, of course, played a large role in this nation’s devastating opioid epidemic. Ketamine is commonly known to be used in sexual assaults. Wanting to prevent further damage to the drug’s already sullied reputation, its manufacturer, Hikma Pharmaceuticals USA, Inc., has threatened to sue to stop Nevada from using its product in executions.
According to Floyd’s lawyers, ketamine can induce “hallucinations, delirium and psychosis,” and prevent their client from “comprehending the reasons for the penalty or its implications.” They contend that Nevada’s drug combination could leave Floyd awake, unable to move and suffocating while he is strapped to a gurney.
Further compounding the risk is that no other state has used either ketamine or the fentanyl substitute, alfentanil, another opioid that Nevada might to use if it cannot get fentanyl.
Alfentanil is not the only substitution that officials could slip in or the only last-minute change under consideration. The Department of Corrections says it might decide to add the muscle paralytic cisatracurium to inhibit breathing before the heart-stopping agent is administered. It also says that it is considering potassium acetate, which is also found in automobile antifreeze, instead of potassium chloride.
On June 29, U.S. District Judge Richard Boulware II stayed Floyd’s execution to allow time for his lawyers to mount legal challenges to Nevada’s ghoulish plan. And, on July 26 the ACLU filed a suit challenging its Rube Goldberg-like execution protocol and planned drug combination as well as the state’s plan to limit media witnesses.
One cannot help but wonder, as an aside, whether the plan to limit witnesses was engendered by the risky execution protocol: officials may be trying to do damage control in advance of an execution that could go horribly wrong.
Remarkably, however, those officials are doing what the law allows them to do. Nevada leaves the choice of lethal injection drugs to the complete discretion of its Department of Corrections. Responding to escalating political pressure to resume executions, that department came up with the risky and complicated set of drug combinations for Floyd’s execution.
In an important recent article, law professor Corinna Barret Lain suggests that the situation in Nevada is typical of what is happening across the country. As she puts it, correction departments have “about as much knowledge of what it takes to perform a medical procedure as your average person on the street…. Knowledge of what drugs to use for lethal injection requires expertise in the field of anesthesiology (or at least pharmacology), and corrections department officials do not have…either.”
Alas, the plan for the Floyd execution proposed by Nevada correction officials is not the first time that they have wanted to employ untested drugs and drug combinations.
Four years ago, they planned to use another drug combination which had never before used in the United States. They wanted to combine fentanyl, the deadly opioid, with a sedative (valium), a muscle relaxant (cisatracurium), and postassium chloride to kill another convicted murdered, Scott Dozier. We cannot know how dangerous this proposal was: Dozier frustrated Nevada’s plan by committing suicide in prison.
In 2006, when Nevada carried out its last execution, it used what was then a standard three-drug combination of the ultra-short-acting barbiturate sodium thiopental, potassium chloride, a paralytic drug, and potassium chloride to stop the heart.
In fact, for every lethal injection during the years between 1982—the year of the first execution by lethal injection in Texas—and 2009, all death penalty states used the same three drug protocol.
However, over the course of the last decade, owing to shortages of some of the standard drugs, the lethal injection paradigm has come apart. Where once states could rely on a standard drug cocktail, they now use a wide variety of drugs and procedures.
By the end of 2020, death penalty states had used at least ten distinct drug protocols in their executions.
While lethal injection has always been rife with problems, a recent study I and five of my students carried out considered every execution by lethal injection in the last decade. We found that mishaps and botched executions have multiplied. Executions using new drug cocktails are more prolonged and problematic than they have ever been.
Where sedatives like those to be used in the Floyd execution are involved, we found that they take on average twice as long as those carried out with the original, three-drug cocktail. In addition, in more than 1 in 5 of lethal injections using sedative combination protocols, a serious mishap occurred during the execution.
A 2020 National Public Radio investigation documented similarly disturbing problems. It found signs of pulmonary edema—fluid filling the lungs—in 84 percent of the 216 post-lethal injection autopsies it reviewed. Inmates’ lungs filled while they continued to breathe, which would cause them to feel as if they were drowning and suffocating.
These findings suggest that today’s brand of lethal injection is far cry from the promise of swift, reliable executions made by lethal injection’s proponents more than four decades ago. Instead, experimentation with lethal injection drugs has taken a horrible toll on those who have been subject to it.
All the while, as Professor Lain notes, legislatures in death penalty states have turned a blind eye and abdicated their responsibilities. And courts, encouraged by a string of troubling Supreme Court decisions, have deferred to the uniformed and unreliable choices of lethal injection drugs made by low level officials in state correctional bureaucracies.
That is why the pending Nevada litigation is so important. Judge Boulware has an opportunity to draw a line in the sand and set a new precedent by saying “no” to America’s increasingly desperate and damaging attempts to keep the machinery of death running.
It is time to stop any state from using those they wish to put to death as human guinea pigs. If states like Nevada cannot ensure that executions are safe, reliable, and humane—and experience shows that they cannot—then they should not be in the execution business at all.
