The execution chamber at Ely State Prison is shown Nov. 10, 2016 just after completion. (Photo: Nevada Department of Corrections via AP, file)
By Scott Sonner Associated Press
Friday, July 2, 2021
RENO — Nevada prison officials say one of the drugs they originally planned to use this month in the state's first execution of an inmate in 15 years expires July 31. Another expires six weeks after a new evidentiary hearing a judge now has scheduled in October to decide if or when four-time convicted killer Zane Michael Floyd will receive a lethal injection.
But Nevada's lawyers said in new court filings two other drugs in the four-drug execution protocol they have submitted to the court are available at least through February.
And state corrections' officials told the judge before he ordered a delay in the execution on Monday that they have access to similar drugs that could substitute for the other two closest to expiration.
Meanwhile, the order blocking the execution previously scheduled the week of July 26 is subject to appeal by the state for another two weeks. And a pharmaceutical company that sold Nevada one of the drugs, ketamine, is demanding it be returned because it's meant to be used for life-saving purposes, not to carry out a state-sanctioned death.
Nevada's Chief Deputy Attorney General Randall Gilmer insists the New Jersey-based Hikma Pharmaceuticals USA Inc. has no authority to block the state's use of the drug, and that the state has other ways to obtain that drug if necessary.
But the availability of the drugs the state wants to use to put Floyd to death is likely to remain a point of contention in the months ahead — just as it was the last time the state planned an execution in 2018.
The state had temporarily abandoned plans to put twice-convicted killer Scott Dozier to death by lethal injection when Dozier killed himself in prison in January 2019.
The four drugs in the state's current protocol are the powerful opioid fentanyl, ketamine, heart-stopping potassium chloride and perhaps a muscle paralytic called cisatracurium.
Hikma is pressing for the return of the ketamine it sold to the state. In 2018, it mounted a successful legal battle and won the return of the fentanyl it had sold Nevada then.
Company spokesman Steve Weiss told The Associated Press on Friday that Hikma will consider filing suit to block the use of the ketamine if necessary.
"Nevada, the governor, the attorney general, the head of the Department of Corrections are all aware of our policies prohibiting the purchase and use of our medicines for executions," he said. "We have a range of options, and they are all on the table. ... We prevailed in 2018 with the fentanyl, and the state ultimately returned the medicine to us when they were unable to use it for capital punishment."
Floyd's lawyers say he'd prefer to be killed by a firing squad or a single dose of a powerful barbiturate than a combination of drugs that has never been tried before in an execution.
"Nevada seeks to execute Floyd using a novel, experimental and arbitrary protocol, unnecessarily risking that Floyd will suffer severe pain during his execution," they said in an amendment complaint filed late Thursday. "Allowing the state to proceed with the execution of Floyd would subject him to cruel and unusual punishment."
U.S. District Judge Richard Boulware II indicated during a hearing Monday that he was troubled by the fact the state had presented a total of eight different alternatives in its three- or four-drug protocol and wouldn't decide until seven days before the execution exactly which ones to use.
The state has been reluctant to divulge any information about the drugs and initially filed its latest response to Boulware's request for information on Thursday under seal with the expiration dates redacted before the judge unsealed the document and published a new version that included the expiration dates
The potassium chloride in the state's possession expires July 31 and the fentanyl Nov. 30.
If necessary, Nevada Corrections Director Charles Daniels said they can substitute alfentanil for fentanyl and potassium acetate for the potassium chloride.
The ketamine doesn't expire until Feb. 28, 2022, and the cisatracurium until April 19, 2022.
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