Nebraska Proposes Untried Lethal-Injection Combination as Nevada Court Halts Execution With Similar Drugs

As Nebraska announced its inten­tion to use a nev­er-before-tried four-drug exe­cu­tion com­bi­na­tion fea­tur­ing the opi­od pain med­ica­tion fen­tanyl and the par­a­lyt­ic drug cisatracuri­um, a Nevada judge issued a stay of exe­cu­tion that put off the nation’s first attempt­ed exe­cu­tion using those drugs. 

On November 9, the Nebraska Department of Correctional Services pro­vid­ed notice to death-row pris­on­er Jose Sandoval that it intends to exe­cute him using a com­bi­na­tion of the drugs diazepam (Valium), fen­tanyl cit­rate, cisatracuri­um besy­late, and potas­si­um chlo­ride. Later that day, Clark County (Las Vegas) District Judge Jennifer Togliatti grant­ed a request by lawyers for the Nevada Department of Corrections to stay the sched­uled November 14 exe­cu­tion of Scott Dozier to per­mit them to appeal her order direct­ing the state to remove cisatracuri­um from its also untried exe­cu­tion pro­to­col of diazepam, fen­tanyl, and the paralytic. 

Dozier, who has waived his appeals and asked to be exe­cut­ed, is only con­test­ing the state’s method of exe­cu­tion. The judge issued her order after con­sid­er­ing med­ical evi­dence that the cisatracuri­um could cause Dozier to expe­ri­ence ​“air hunger” and suf­fo­cate to death, while mask­ing signs that he was con­scious and suf­fer­ing dur­ing the exe­cu­tion. Doctors tes­ti­fied that a par­a­lyt­ic drug would be unnec­es­sary if the oth­er two drugs, fen­tanyl and diazepam, were administered properly. 

In stay­ing the exe­cu­tion to per­mit Nevada to appeal to the state supreme court, Judge Togliatti said: ​“They’re going to have to be the court to make that deter­mi­na­tion that we as a state are OK with a paralytic.” 

Nebraska law requires the state to give a prison notice of the drugs to be used in the exe­cu­tion at least six­ty days in advance of issu­ing a death war­rant. The state attor­ney gen­er­al’s office has indi­cat­ed it will ask the Nebraska Supreme Court to issue a war­rant after that time has passed. 

State Senator Ernie Chambers, one of the lead­ers of the Nebraska leg­is­la­ture’s repeal of the state’s death-penal­ty statute and its over­ride of Governor Pete Ricketts’s veto of the mea­sure, crit­i­cized the notice as polit­i­cal­ly moti­vat­ed and called the tim­ing of its issuance ​“sus­pi­cious.” The notice was issued almost a year to the day after the vot­ers brought back the death-penal­ty law in a vot­er ini­tia­tive bankrolled by Rickett, and as the gov­er­nor gears up for a re-elec­tion cam­paign in 2018. 

Sandoval is cur­rent­ly unrep­re­sent­ed. The Nebraska Commission on Public Advocacy, which typ­i­cal­ly rep­re­sents death-row pris­on­ers, can­not rep­re­sent Sandoval because it rep­re­sent­ed oth­er defen­dants in the case. But the com­mis­sion’s exec­u­tive direc­tor, Jeffery Pickens, said Sandoval ​“has to be giv­en some sort of oppor­tu­ni­ty to chal­lenge [the drug protocol].”