Judge bans drug in Nevada protocol, effectively delaying execution

By Danielle Haynes Follow @DanielleHaynes1 Contact the Author   |  July 11, 2018 at 3:57 PM
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July 11 (UPI) -- A federal judge in Nevada ruled that the state can't use one of the three drugs in its lethal injection protocol, effectively delaying Wednesday night's planned execution of a man condemned for a 2007 murder.

District Judge Elizabeth Gonzalez said the Nevada Department of Corrections can't use midazolam, a sedative produced by pharmaceutical company Alvogen Inc. The company sued over Nevada's use of the drug in executions, saying the state obtained it illegally.

Alvogen said the state illegitimately obtained the drug through a third-party distributor.

"Midazolam is not approved for use in such an application," the lawsuit said. "Past attempts by other states to use the medicine in lethal injections have been extremely controversial, and have led to widespread concern that prisoners have been exposed to cruel and unusual treatment. Several attempts have been characterized by media as 'botched' executions."

The three-drug cocktail Nevada planned to use for Dozier's execution -- including painkiller fentanyl and paralytic cisatracuium -- has never been used in the state.

States began adding midazolam to their lethal-injection protocols after European companies stopped selling pentobarbital for use in executions in 2011. As their supplies of pentobarbital began to run out, a number of states turned to small-scale drug manufacturers in the United States for midazolam as a replacement.

Todd Bice, an attorney representing Alvogen said the company's lawsuit was not about the constitutionality of the death penalty nor whether Dozier deserved the death penalty -- it had solely to do with business.

"What we are facing here is serious reputational harm," he said. "This use is incompletely incompatible with our business."

Gonzalez sided with Alvogen, saying the company "established a reasonable probability that it will suffer damages to its business reputation, which will impact investor relations and customer relations."

Dozier, 47, was sentenced to death in 2007 for the 2002 murder of 22-year-old Jeremiah Miller. A Nevada court found him guilty of shooting Miller in the head, draining his body of blood in a bathtub, cutting him into pieces and discarding his remains in an effort to steal $12,000 in a supposed drug deal.

At the time of the trial, Dozier was already serving a 22-year sentence in Arizona for killing and dismembering 26-year-old Jasen Green in another drug-related murder.

In July, Dozier appealed to a judge to schedule his execution after 10 years on death row. He said he wanted to be executed, but he opposed the use of cisatracurium. He argued the paralytic would mask spasms and other potential painful side effects of the other two drugs in the protocol.

In June 2015, the Supreme Court upheld the use of midazolam in lethal injections despite lawsuits from those on death row citing other "botched" executions.

The Supreme Court case centered on the execution of Clayton Lockett on April 29, 2014, in Oklahoma. Convicted of raping and murdering a 19-year-old woman in 2000, Lockett was administered midazolam instead of a barbiturate to induce a coma-like sleep. He survived for 43 minutes after the execution began. Since then, there have been other cases of allegedly botched executions using midazolam in Ohio and Arizona. However, Florida, the first to use midazolam in an execution, has used it many times without reports of adverse effects.

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