A death penalty state is slugging it out with civil rights lawyers over the planned execution of a death row inmate. That’s not so unusual.
Here’s what is: The inmate, convicted murderer Scott Dozier, wants to die. And if that wasn’t bizarre enough, the state of Nevada wants to execute Dozier on Wednesday using fentanyl — the synthetic opioid best known for helping to push the nationwide opioid epidemic out of control.
Not only has fentanyl never been used in a U.S. execution, but Nevada also hasn’t executed an inmate in a dozen years. On Tuesday, just one week and a day before Dozier’s planned execution, Nevada unveiled its new, three-drug execution regimen. That protocol will include doses of midazolam, a controversial sedative deployed in several botched executions, fentanyl, and the paralytic drug cisatracurium.
Normally, such a protocol could trigger a years-long court battle. But since Dozier has “volunteered” to give up his appeals and face the execution chamber, in death penalty parlance, the fight over Dozier’s future is almost at an end.
“They can put it out a week ahead of time because he’s not gonna challenge it,” said Jen Moreno, a staff attorney for the University of California Berkeley’s Death Penalty Clinic who specializes in lethal injection challenges. “They’re getting away with things that they probably wouldn’t get away with if he wasn’t a volunteer.”
So far, the Nevada Department of Corrections has released a one-page press release and an execution manual with several redacted sections. Brooke Santina, a Nevada Department of Corrections spokesperson, told VICE News that agency protocol only requires them to release that information seven days prior to an execution.
“We are following our protocol exactly,” she said.
The American Civil Liberties Union of Nevada has already launched into litigation over the new execution plan. In papers filed Tuesday, the organization asked the state to turn over records explaining how and why it acquired the new execution drugs, and more details about how, exactly, Dozier’s execution will play out.
“Without this information being public, there’s no oversight as to how the execution will occur,” Lauren Kaufman, a staff attorney with the ACLU of Nevada, said Wednesday, shortly after a judge ordered the Nevada Department of Corrections to hand over some of those records. “Who is taking charge of this really most consequential action?”
Nevada opted to use fentanyl in Dozier’s execution amid a national shortage of lethal injection drugs. Because drug manufacturers and distributors are increasingly reluctant to let their wares be used in lethal injections, states have been forced to rewrite decades-old protocols, rely on untested drugs, and fight courtroom battles over their new execution plans. In March, Oklahoma announced that its lack of lethal injection drugs left it with no choice but to change its preferred method of execution to “nitrogen hypoxia,” which involves depriving prisoners of oxygen and has never been used in any state- or nation-sanctioned execution.
As Fordham University professor Deborah Denno wrote in a 2014 article, “Reliance on drugs may end up accomplishing what countless legal challenges could not: drug shortages have devastated this country’s execution process to an unparalleled degree.”
Originally, Nevada also planned to put Dozier to death in November, using diazepam — a drug better known by its brand name Valium — in place of the midazolam. But Clark County District Judge Jennifer Togliatti halted Dozier’s execution and ordered Nevada to drop cisatracurium from its execution protocol, ruling that the regimen could unconstitutionally mask signs of Dozier’s suffering if the diazepam and fentanyl were poorly administered.
Dozier was convicted of second-degree murder in 2005 and of first-degree murder with a deadly weapon and robbery with a deadly weapon in 2007, after authorities found two dismembered bodies. He has said that he hates life in prison. “I’ve got a surplus of time on my hands and a catastrophic dearth of intelligence, hilarity, and awesomeness,” Dozier told a VICE music editor in a fan letter in 2013.
Still, Dozier’s willingness to drop his appeals doesn’t mean that lawyers won’t go to court over his case.
“It doesn’t relieve the lawyer or the judicial system of their obligation to examine the legal issues in the case,” explained Sean O’Brien, a law professor at the University of Missouri-Kansas City School of Law who’s argued several capital punishment cases. “Just because he wants to be executed, doesn’t mean the state gets to execute him in a cruel and unusual manner. No one is allowed to pick that.”
By the time the Nevada Supreme Court overturned Togliatti’s order in May, over procedural issues, Nevada’s supply of diazepam had expired. Midazolam, the state’s replacement, was first used in an execution in Florida in 2013. Its popularity in lethal injections has only grown over recent years, despite being used in botched executions in Alabama, Arizona, Ohio, and Oklahoma.
“We’ve kind of moved into the realm of human experimentation with executions,” O’Brien said.
The ACLU of Nevada isn’t seeking to delay Dozier’s execution. “At this point, Mr. Dozier is really the only person who is going to be able to halt his own execution,” Kaufman explained. “So if he were to change his mind, then absolutely he would be able to stop it.”
If the execution goes on as planned, Dozier will become the first person to die in Nevada’s new execution chamber. It cost about $860,000 to construct.
Tune in to VICE News Tonight on HBO on July 10 to hear an exclusive interview with Scott Dozier as he faces execution by an experimental drug cocktail including fentanyl.
Cover image: Nevada death row inmate Scott Dozier appears in a Las Vegas court via video on Wednesday, Nov. 8, 2017. (Michael Quine/Las Vegas Review-Journal)