The state of Nevada was scheduled to execute its first prisoner in 12 years by lethal injection tonight at 11 p.m. ET—and it planned to use fentanyl, the powerful, synthetic opioid that has been implicated as a chief culprit in the opioid crisis. The plan has already received a fair bit of scrutiny from legal advocates over issues of transparency, and this afternoon, the execution was halted after pharmaceutical company Alvogen sued the prison. Alvogen manufactures midazolam, a sedative that was one element of the three-drug injection, and the drugmaker sued because it did not want its medication to be used in an execution.
The prison never disclosed its reason for choosing fentanyl, but presumably, it settled on the drug simply because Nevada doesn’t have many good options for other medications to use. Traditionally, when lethal injection is used, a cocktail of three drugs is administered, to render the prisoner unconscious, numb them, and then stop their bodily functions painlessly. The intention is to create a process that does not subject the prisoner to any unreasonable discomfort, which would be a violation of the Eight Amendment prohibition on “cruel and unusual punishments.” But pharmaceutical companies are increasingly unwilling to aid prisons in carrying out these executions, leaving prisons in a troubling position of having to try untested alternatives. That’s likely how they ended up relying on fentanyl, which has never been used in a prison execution before.
Opioids don’t only activate dopamine centers, the drugs also affect other parts of the brain that maintain necessary bodily functions. If too much enters the system, the brain will stop sending messages to the body telling it to keep breathing and for the heart to keep beating, eventually resulting in brain damage from lack of oxygen, and, eventually, death. What’s not clear is how much physical pain this causes, and how fentanyl, which is an especially powerful opioid, would interact with other drugs. In this execution, Nevada planned to also inject the man with midazolam, a sedative, and cisatracurium, a paralytic. It’s hard to know exactly how these drugs would have interacted in his body.
The prisoner is Scott Dozier, who was convicted of the murder of Jeremiah Miller over a drug-related dispute in 2002. He was sentenced to 22 years in prison at the time of this conviction. But in 2002, he was connected to another murder, the 2001 killing of Jasen Green, and was given the death sentence. He’s been on death row for the last 10 years. Despite the controversy surrounding the use of fentanyl in his execution, which could be grounds for an appeal, Dozier decided to not go that route. “I don’t want to die,” he said, in an interview from a 2018 report and documentary produced by the Marshall Project. “I just would rather be dead than do this.”
There are no laws in Nevada requiring prisons to disclose where they get the drugs they use in executions. The American Civil Liberties Union, concerned about the precedent this decision may set, petitioned the prison for that information, and determined the prison had obtained fentanyl from a large pharmaceutical distributor called, Cardinal Health.
“The process by which they chose fentanyl was not subject to public hearing, public input, public oversight,” said Robert Dunham, the executive director of the Death Penalty Information Center, before the injunction came down. “So, we may never know why they thought that this was appropriate.”
With the injunction, we may finally have a chance.
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