Nevada Proposes to Execute Zane Floyd with Untried Drug Combination

The Nevada Department of Corrections (NVDOC) intends to exe­cute death-row pris­on­er Zane Floyd with a three- or four-drug com­bi­na­tion that has nev­er been used before to put a pris­on­er to death. In a pro­posed exe­cu­tion pro­to­col released on June 10, 2021, NVDOC said its exe­cu­tion cock­tail would be drawn from six pos­si­ble drugs, depend­ing upon availability. 

While acknowl­edg­ing ongo­ing chal­lenges to the legal­i­ty and con­sti­tu­tion­al­i­ty of NVDOC’s planned exe­cu­tion process, Las Vegas tri­al judge Michael Villani grant­ed Clark County District Attorney Scott Wolfson’s motion to set a July 26 exe­cu­tion date for Floyd. ​“The court is unper­suad­ed that the Nevada Department of Corrections must first prove that it can safe­ly car­ry out an exe­cu­tion before the court can sign an order of exe­cu­tion,” Villani said.

Brad Levenson, a fed­er­al pub­lic defend­er who rep­re­sents Floyd and had already filed a fed­er­al chal­lenge to the state’s exe­cu­tion pro­ce­dures, said he will appeal the exe­cu­tion order to the state supreme court. While the motion to set the exe­cu­tion date was pend­ing, U.S. District Court Judge Richard Boulware II cau­tioned that a July exe­cu­tion date would make it impos­si­ble to devel­op the facts suf­fi­cient­ly to resolve the issues before him and that he may issue a stay to pro­vide the court the time nec­es­sary to prop­er­ly review the state’s execution protocol.

Nevada has not car­ried out an exe­cu­tion since 2006. At that time, it used a three-drug com­bi­na­tion of the ultra-short-act­ing bar­bi­tu­rate sodi­um thiopen­tal, a par­a­lyt­ic drug, and potas­si­um chlo­ride to stop the heart. The 2021 exe­cu­tion pro­to­col calls for either a three-drug pro­to­col of an opi­oid (either fen­tanyl or alfen­tanil, depend­ing on avail­abil­i­ty), the anes­thet­ic ket­a­mine, and a drug to stop the heart (either potas­si­um chlo­ride or potas­si­um acetate, depend­ing on avail­abil­i­ty). An alter­na­tive four-drug method adds the par­a­lyt­ic cisatracuri­um as the third drug in the sequence. 

The ACLU of Nevada sharply crit­i­cized the state’s lethal-injec­tion pro­to­col. Jen Shomshor, a senior staff attor­ney for the ACLU, said the ​“vagaries about which drugs may or may not be used make it impos­si­ble for Nevadans to ver­i­fy whether the planned exe­cu­tion will be law­ful.” Shomshor called it ​“com­plete­ly unac­cept­able that we’re talk­ing about using a human being as a guinea pig just because we have a dis­trict attor­ney that’s eager to kill some­one and a gov­er­nor who refus­es to take action to end our state’s bro­ken cap­i­tal pun­ish­ment sys­tem. Taking a person’s life is the most extreme form of pun­ish­ment our gov­ern­ment can impose, and it’s not a time to be cagey about the details. The com­mu­ni­ty has the right to know pre­cise details about the state’s plans to kill one of its cit­i­zens,” she said.

District Attorney Wolfson ini­tial­ly announced his inten­tion to seek an exe­cu­tion date for Floyd while the Nevada state leg­is­la­ture was con­sid­er­ing a bill to abol­ish the death penal­ty. Although the bill passed the State Assembly and had strong sup­port in the State Senate, it nev­er received a hear­ing in the upper cham­ber. Advocates for abo­li­tion ques­tioned the role of Senate Majority Leader Nicole Cannizzaro and Senate Judiciary Committee Chair Melanie Scheible — both of whom work as pros­e­cu­tors in the Clark County District Attorney’s office — in block­ing Senate con­sid­er­a­tion of the bill.

The 2021 pro­to­col is not the first time Nevada has attempt­ed to employ untest­ed drug com­bi­na­tions to exe­cute pris­on­ers. In 2017, as Scott Dozier attempt­ed to rush his exe­cu­tion by waiv­ing his appeal rights, the state hur­ried­ly adopt­ed an untried three-drug pro­to­col of diazepam, fen­tanyl, and cisatracuri­um. A state court judge halt­ed Dozier’s exe­cu­tion, issu­ing an injunc­tion based on its find­ing that NVDOC had obtained drugs pro­duced by Alvogen, Inc. ​“by sub­terfuge” and pro­hibit­ing the state from using Alvogen’s drugs. While lit­i­ga­tion over the drug manufacturer’s law­suit against Nevada con­tin­ued, Dozier — who had said he would rather die than spend his life in prison — took his own life.

Only one of the twelve peo­ple exe­cut­ed by Nevada since 1979 con­test­ed his exe­cu­tion; the oth­er eleven ​“vol­un­teered” for exe­cu­tion by waiv­ing some or all of their appeals. Floyd would be the first non-vol­un­teer exe­cut­ed in Nevada in 25 years. In addi­tion to his chal­lenge to Nevada’s drug pro­to­col, Floyd has sought a stay of exe­cu­tion so he can receive a hear­ing on his clemen­cy peti­tion and obtain judi­cial review of oth­er legal chal­lenges to his execution.