Nevada Says Fentanyl Was Easy to Obtain, But Execution Protocol Draws Criticism from Doctors, Legal Experts

As U.S. phar­ma­ceu­ti­cal com­pa­nies have strength­ened dis­tri­b­u­tion con­trols on their med­i­cines to pre­vent their use in exe­cu­tions, states have been chang­ing their exe­cu­tion pro­to­cols in search of new or more read­i­ly avail­able drugs. That search has led Nebraska and Nevada to build their exe­cu­tion pro­to­cols around fen­tanyl—the drug known for its role in the cur­rent opi­oid cri­sis in America — and the par­a­lyt­ic cisatracuri­um, which have nev­er been used in executions before. 

According to a report in the Washington Post, Nevada’s for­mer chief med­ical offi­cer, Dr. John DiMuro, quick­ly chose a nev­er-before-used com­bi­na­tion of drugs for the state’s exe­cu­tion pro­to­col based upon ​“the few drugs avail­able to the prison sys­tem.” In an e‑mail to the Post, the Nevada cor­rec­tions depart­ment said the drug was easy to obtain. ​“We sim­ply ordered it through our phar­ma­ceu­ti­cal dis­trib­u­tor, just like every oth­er med­ica­tion we pur­chase, and it was deliv­ered,” wrote cor­rec­tions spokeper­son Brooke Keast. ​“Nothing out of the ordi­nary at all.” 

In April, drug dis­trib­u­tor McKesson Medical-Surgical sued Arkansas after learn­ing that the state was using one of the med­i­cines it obtained from the dis­trib­u­tor as an exe­cu­tion drug, alleg­ing the state had delib­er­ate­ly mis­led McKesson to believe that the pur­chase was for legit­i­mate med­ical pur­pos­es. That law­suit is still pend­ing in the Arkansas courts. 

Dr. DiMuro said he cre­at­ed the untried exe­cu­tion pro­to­col ​“based it on pro­ce­dures com­mon in open-heart surgery.” However, the pro­to­col has spawned a new round of crit­i­cism from doc­tors and lethal-injection experts. 

Mark Heath, a pro­fes­sor of anes­the­si­ol­o­gy at Columbia University, told the Post that if the fen­tanyl or the seda­tive Valium — which Nevada would also admin­is­ter before the par­a­lyt­ic — ​“don’t work as planned, or if they are admin­is­tered incor­rect­ly,” then the pris­on­er would be awake and con­scious dur­ing the exe­cu­tion. ​“It would be an ago­niz­ing way to die, but the peo­ple wit­ness­ing wouldn’t know any­thing had gone wrong because you wouldn’t be able to move” because of the par­a­lyt­ic drug, he said. 

Emory University Professor of Anesthesiology Joel Zivot said the pro­to­col is the lat­est in a series of attempts by states to ​“obtain cer­tain drugs, try them out on pris­on­ers, and see if and how they die.” The states, he said, have ​“no med­ical or sci­en­tif­ic basis” for select­ing the execution drugs. 

Fordham University law pro­fes­sor Deborah Denno, a lead­ing schol­ar on meth­ods of exe­cu­tion, crit­i­cized the states for con­tin­u­ing to adopt exper­i­men­tal drug pro­to­cols. The rea­son for the change in pro­to­cols, she said, is ​“not real­ly for the pris­on­er. It’s for the peo­ple who have to watch it hap­pen. We don’t want to feel squea­mish or uncom­fort­able. We don’t want exe­cu­tions to look like what they real­ly are: killing someone.” 

On November 27, a Nevada state tri­al court issued an inunc­tion bar­ring the state from using a par­a­lyt­ic in con­junc­tion with fen­tanyl in the exe­cu­tion of Scott Dozier. The state has appealed the order.