Nevada Prosecutors Ask Federal Judge to Expedite Decision on Execution Protocol, Citing Looming Expiration Date of Questionably Obtained Drugs

Nevada pros­e­cu­tors have asked a fed­er­al judge to expe­dite a deci­sion on the con­sti­tu­tion­al­i­ty of the state’s exe­cu­tion process, say­ing accel­er­at­ed review is nec­es­sary if the state is to exe­cute Zane Floyd before its sup­ply of a ques­tion­ably obtained lethal-injec­tion drug expires on February 28, 2022.

On November 5, 2021, Chief Deputy Nevada Attorney General Randall Gilmer told U.S. District Court Judge Richard Boulware II that the state’s sup­ply of the anes­thet­ic ket­a­mine, one of the drugs in Nevada’s nev­er-before-used exe­cu­tion pro­to­col will expire at the end of February and that Nevada Department of Corrections (NDOC) offi­cials ​“have no rea­son­able belief that we’ll be able to pur­chase addi­tion­al drugs.” ​“We need to con­tin­ue to expe­dite this case,” Gilmer said.

After pre­vi­ous­ly receiv­ing a let­ter from Hikma Pharmaceuticals inform­ing the state that the drug man­u­fac­tur­er would not sell its med­i­cines to NDOC for exe­cu­tions, NDOC offi­cials on May 26, 2021 obtained 50 vials of the company’s ket­a­mine in an on-line pur­chase from drug dis­trib­u­tor Cardinal Health. The state did not dis­close that it intend­ed to use the drugs in exe­cut­ing Floyd on July 26, 2021. 

Hikma respond­ed on June 24, 2021, send­ing a cease-and-desist let­ter to Nevada Attorney General Aaron Ford threat­en­ing to sue the state unless NDOC returned the drugs. ​“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.” 

On June 28, 2021, Judge Boulware stayed Floyd’s exe­cu­tion, writ­ing that Nevada’s delays in dis­clos­ing a drug pro­to­col that no state had ever used before had denied the court suf­fi­cient time to assess the con­sti­tu­tion­al­i­ty of its exe­cu­tion method. ​“Even for indi­vid­u­als who have been con­demned to exe­cu­tion by the state, fun­da­men­tal due process and fair­ness is required to have an ade­quate amount of time to be able to inves­ti­gate the method by which the state intends to take his life,” Boulware wrote. 

An Associated Press report said that Boulware has set aside at least three days in November for exe­cu­tion-pro­to­col hear­ings, with the pos­si­bil­i­ty of addi­tion­al hear­ings in December. Other chal­lenges to Floyd’s exe­cu­tion are pend­ing in a Las Vegas (Clark County) tri­al court, in the Nevada Supreme Court, and in the U.S. Court of Appeals for the Ninth Circuit. Boulware made no promis­es on how long it would take to adju­di­cate Floyd’s exe­cu­tion-pro­to­col chal­lenge. Proceedings in the Clark County case are sched­uled for November 12, 2021.

NDOC released its lat­est exe­cu­tion pro­to­col on June 10, 2021. The plan calls for either a three- or four-drug exe­cu­tion, using six pos­si­ble drugs. Ketamine is the sec­ond drug in both pro­to­col options. The three-drug option would use an opi­oid (either fen­tanyl or alfen­tanil, depend­ing on avail­abil­i­ty), ket­a­mine as an anes­thet­ic, and a drug to stop the heart (either potas­si­um chlo­ride or potas­si­um acetate, depend­ing on avail­abil­i­ty). A four-drug alter­na­tive method adds the par­a­lyt­ic cisatracuri­um as the third drug in the sequence.

Floyd has been on death row since 2000. A Clark County judge sched­uled Floyd’s exe­cu­tion last sum­mer, also issued a stay. Nevada has not car­ried out an exe­cu­tion in 15 years. No one on the NDOC exe­cu­tion team has any expe­ri­ence con­duct­ing an exe­cu­tion. It’s “[n]ew peo­ple, using an entire­ly new pro­to­col that’s nev­er been used before,” Gilmer told the court.