Nevada Death-Row Prisoner Who Faced July Execution Date Files Application to Commute Death Sentence

A Nevada death-row pris­on­er has asked for a clemen­cy hear­ing to present new evi­dence of sig­nif­i­cant brain dam­age and post-trau­mat­ic stress dis­or­der caused by mil­i­tary ser­vice and childhood trauma. 

On August 10, 2021, lawyers for Zane Floyd (pic­tured, right) filed an appli­ca­tion for clemen­cy with the Nevada Board of Pardons request­ing that Floyd’s life be spared. ​“Clemency is an act of mer­cy,” said Brad Levenson, Floyd’s attor­ney. ​“If a death case does not qual­i­fy for con­sid­er­a­tion, what does?”

Floyd, whom the state tried to exe­cute in July 2021, is still at risk of being exe­cut­ed before he presents the new evi­dence to Nevada’s Governor, Attorney General, and oth­er mem­bers of the Nevada Board of Pardons Commissioners. Their next hear­ing is slat­ed for September 21, 2021 and Floyd’s case is not on the agen­da, even though his lawyers are push­ing to have the clemen­cy peti­tion and new evi­dence heard then. Although he does not cur­rent­ly have an exe­cu­tion date, Floyd con­tin­ues to face the pos­si­bil­i­ty that a new death war­rant could sched­ule his exe­cu­tion for a date before his peti­tion is reviewed.

The new evi­dence that Floyd’s lawyers pre­sent­ed in his clemen­cy peti­tion includ­ed more than a dozen dec­la­ra­tions from men­tal health experts that detail his severe brain dam­age and men­tal impair­ments from Fetal Alcohol Spectrum Disorder (FASD) and post-trau­mat­ic stress dis­or­der (PTSD) result­ing from sig­nif­i­cant child­hood trau­ma he expe­ri­enced at the hands of his par­ents and step­fa­ther and his mil­i­tary ser­vice at Guantánamo Bay as a Marine. At Floyd’s death-penal­ty tri­al in 2000, jurors nev­er heard any evi­dence relat­ed to his FASD or PTSD. In a news release accom­pa­ny­ing the fil­ing of his clemen­cy peti­tion, Floyd’s defense team argues that “[h]ad the jury been pre­sent­ed with this infor­ma­tion, one or more jurors may have vot­ed to spare him from execution.”

“Given Mr. Floyd’s diag­no­sis of FASD, which is rec­og­nized as func­tion­al­ly equiv­a­lent to intel­lec­tu­al dis­abil­i­ty, his young age at the time of the crime, and his PTSD, he should nev­er have been eli­gi­ble for the death penal­ty,” said Levenson. ​“Mr. Floyd deserves to be able to present this evi­dence to the Board of Paroles.”

The clemen­cy peti­tion notes that Floyd’s moth­er abused alco­hol no less than five days out of sev­en when she was preg­nant with him. This heavy drink­ing “[caused] wide­spread dam­age to Zane’s brain, in utero” and “[e]vidence of such dam­age became appar­ent almost imme­di­ate­ly,” includ­ing delayed devel­op­men­tal mile­stones, deficits of cog­ni­tive func­tion­ing, poor atten­tion span, and hyper­ac­tive behav­ior. School author­i­ties tried to place Floyd in spe­cial edu­ca­tion class­es, but Floyd’s father refused and said he would ​“tough­en” him up and ​“fix” him. Noting that Floyd com­mit­ted the crime at age 23, the clemen­cy peti­tion states, ​“Given the nor­mal­ly devel­op­ing ado­les­cent brain does not have mature exec­u­tive con­trol capac­i­ty until at least the age of twen­ty-five, and brain devel­op­ment in young adults with FASD lag many years behind rates seen in neu­rotyp­i­cal age peers, it is like­ly that Zane’s brain was not ful­ly devel­oped at the time of the offense … , which would have had an addi­tive and cumu­la­tive effect on the brain dam­age with which he was born.”

Floyd also had sig­nif­i­cant PTSD due to his vio­lent upbring­ing that was exac­er­bat­ed when he entered the mil­i­tary at age 18 and endured high­ly stress­ful con­di­tions as a Marine sta­tioned in Guantanamo Bay, Cuba. The release notes that Floyd ​“expe­ri­enced sig­nif­i­cant child­hood trau­ma as a result of grow­ing up in a house­hold where both his par­ents drank exces­sive­ly, his birth father aban­doned him, and his step-father was vio­lent with Mr. Floyd’s moth­er and with Mr. Floyd” and that Floyd ​“escaped the fam­i­ly home by join­ing the military.”

The United States Supreme Court has ruled that indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty lack the moral cul­pa­bil­i­ty to be sub­ject to the death penal­ty. It has not, how­ev­er, extend­ed that con­sti­tu­tion­al pro­tec­tion to indi­vid­u­als with com­pa­ra­ble impair­ments in func­tion­ing who do not meet the clin­i­cal cri­te­ria for that disorder.

In an August 20, 2021 com­men­tary in The Nevada Independent, Dr. Natalie Novick Brown, an inter­na­tion­al­ly rec­og­nized expert on fetal alco­hol dis­or­ders who eval­u­at­ed Floyd, wrote that his devel­op­men­tal impair­ments are ​“sim­i­lar in sever­i­ty to intel­lec­tu­al dis­abil­i­ty” and have ​“broad impli­ca­tions regard­ing his behav­ior, impulse con­trol, and deci­sion-mak­ing. … Moving for­ward with this exe­cu­tion,” she wrote, ​“would be turn­ing a blind eye to the sci­en­tif­ic and med­ical con­sen­sus that has deter­mined peo­ple with FASD like Zane Floyd have a brain-based, con­gen­i­tal, life­long, impact­ful dis­or­der equiv­a­lent to intellectual disability.”

Levinson wrote in the clemen­cy peti­tion that ​“to under­stand Zane’s life tra­jec­to­ry is to under­stand that he is not a dan­ger to oth­ers, he has great remorse for his actions, he proud­ly served our coun­try as a United States Marine, and that serv­ing a life term in prison is the appro­pri­ate sen­tence that should be imposed.”

Nevada has under­gone a series of notable death-penal­ty events over the past few months, includ­ing almost abol­ish­ing the death penal­ty in May 2021 and propos­ing to exe­cute Floyd with an untried drug combination in June 2021. Also in June 2021, a phar­ma­ceu­ti­cal man­u­fac­tur­er accused Nevada of ​“sur­rep­ti­tious­ly” obtain­ing its drugs for use in exe­cu­tions in vio­la­tion of state and federal law.