Deadline to Seek Execution of Zane Floyd Before Lethal-Injection Drugs Expire Passes in Nevada

Nevada pros­e­cu­tors have failed to meet a dead­line to obtain a death war­rant to exe­cute Zane Floyd before its sup­ply of a key lethal-injec­tion drug expires, indef­i­nite­ly extend­ing the near 16-year pause between exe­cu­tions in the state. 

With Nevada law requir­ing two-week notice of an exe­cu­tion, Clark County pros­e­cu­tors had until February 13, 2022, to obtain a war­rant if they were to attempt to exe­cute Floyd before the state’s sup­ply of 50 ket­a­mine vials expires on February 28. They did not do so.

Prosecutors had been press­ing U.S. District Court Judge Richard Boulware II to issue an expe­dit­ed rul­ing in Floyd’s fed­er­al-court chal­lenge to the con­sti­tu­tion­al­i­ty of Nevada’s nev­er-before-tried exe­cu­tion pro­to­col so they could exe­cute Floyd by the drug’s use-by date. Citing delays by the state in pro­vid­ing crit­i­cal infor­ma­tion about the pro­to­col, Boulware declined.

Nevada’s exe­cu­tion pro­to­col allows for exe­cu­tions with any of eight dif­fer­ent untest­ed drug com­bi­na­tions, all of which include ket­a­mine. Three-drug ver­sions of the pro­to­col require an opi­oid (either fen­tanyl or alfen­tanil) to block pain sig­nals, ket­a­mine to block aware­ness, then potas­si­um chlo­ride or potas­si­um acetate to stop the heart. In four-drug ver­sions of the pro­to­col, the exe­cu­tion­er would also admin­is­ter a par­a­lyt­ic drug before the potas­si­um chlo­ride or potassium acetate. 

At a February 14, 2022 sta­tus hear­ing in the case, Clark County Deputy District Attorney Alex Chen told Boulware that pros­e­cu­tors had not ​“fe[lt] com­fort­able” seek­ing a death war­rant while sev­er­al chal­lenges to the exe­cu­tion process were still pend­ing in the Nevada Supreme Court. Chief deputy Nevada attor­ney gen­er­al Randall Gilmer con­ced­ed that, as a result, it now ​“would be impos­si­ble” for Nevada to exe­cute Floyd with its cur­rent drug supply.

The potas­si­um drugs in Nevada’s exe­cu­tion pro­to­col have been described as akin to being chem­i­cal­ly burned at the stake. In November 2021, Floyd pre­sent­ed expert med­ical tes­ti­mo­ny to the fed­er­al court that the unprece­dent­ed com­bi­na­tion of fen­tanyl and ket­a­mine — which are not typ­i­cal­ly used to induce uncon­scious­ness — would increase the risk that Floyd would be con­scious dur­ing the ​“extreme­ly painful” admin­is­tra­tion of the potassium drugs. 

Although Nevada is no longer able to exe­cute Floyd, Gilmer asked Boulware to rule on the state’s pro­posed drug cock­tail. “[T]he case is not moot, nec­es­sar­i­ly,” Gilmer argued, ​“because of the pos­si­bil­i­ty that more drugs could be obtained in the future.” Boulware said he may decide on the con­sti­tu­tion­al­i­ty at the next sched­uled hear­ing on April 5, 2022. 

Whether and when the state will be able to obtain a new sup­ply of ket­a­mine is uncer­tain. Hikma Phamaceuticals, which man­u­fac­tured the ket­a­mine obtained by Nevada, had noti­fied the Nevada Department of Corrections (NDOC) that it would not sell its med­i­cines to them for use in exe­cu­tions. NDOC offi­cials sub­se­quent­ly pur­chased the ket­a­mine online from phar­ma­ceu­ti­cal dis­trib­u­tor Cardinal Health with­out dis­clos­ing its intend­ed use. Hickma has sent NDOC cease-and-desist let­ters demand­ing the return of its prod­uct and threat­ened to sue the state if NDOC attempt­ed to use the drugs in any execution. 

“Hikma has tak­en proac­tive action to pre­vent the sale and dis­tri­b­u­tion of its prod­ucts to NDOC, and NDOC’s mis­use of its prod­ucts in the State of Nevada’s lethal injec­tion pro­to­col,” Hikma wrote. ​“Nonetheless, it appears that NDOC has ignored Hikma’s repeat­ed demands and, in know­ing vio­la­tion of Hikma’s legal rights, express com­mu­ni­ca­tions with NDOC and express poli­cies and con­trols, NDOC sur­rep­ti­tious­ly obtained Hikma’s Ketamine for use in an execution.”

Previously, in 2018, drug man­u­fac­tur­er Alvogen sued the NDOC to pre­vent the use of its seda­tive mida­zo­lam in the sched­uled exe­cu­tion of Scott Dozier. After receiv­ing a sim­i­lar notice from Alvogen that it would not sell its drugs to Nevada for use in exe­cu­tions, NDOC pur­chased the drugs from Cardinal Health with­out dis­clos­ing their intend­ed pur­pose. To con­ceal its intent, NDOC direct­ed Cardinal Health to ship the drugs to an office more than 200 miles from the state prison. A state court found that NDOC had obtained the drugs ​“by sub­terfuge,” and issued a tem­po­rary restrain­ing order bar­ring the use of the drugs in any execution. 

Floyd has been on death row since 2000. The Clark County District Attorney’s office sought and obtained a war­rant for his exe­cu­tion in April 2021, short­ly after the Nevada state house vot­ed to repeal the state’s death penal­ty. Full-time pros­e­cu­tors in the office serve as Senate Majority Leader and Judiciary Committee chair, but pros­e­cu­tors denied that the war­rant was an attempt to influ­ence the senate’s con­sid­er­a­tion of the bill, which nev­er received a vote in the senate. 

Boulware stayed Floyd’s exe­cu­tion on June 28, 2021, writ­ing that ​“fun­da­men­tal due process and fair­ness” required that Floyd be pro­vid­ed ​“an ade­quate amount of time to be able to inves­ti­gate the method by which the state intends to take his life.” The Clark County judge who sched­uled Floyd’s exe­cu­tion also issued a stay. 

No one on the NDOC exe­cu­tion team has any expe­ri­ence con­duct­ing an exe­cu­tion, and a doc­tor and two emer­gency med­ical tech­ni­cians who had agreed to par­tic­i­pate in Floyd’s exe­cu­tion backed out after Judge Boulware asked the state to pro­vide him with their credential information.