Nevada twice has come close to carrying out its first execution in 12 years. And twice it failed.
Condemned killer Scott Raymond Dozier says he wants to die, but the state has no clear path forward after courts blocked it from using a never-tried combination of drugs that it created after struggling to get lethal injection supplies.
The delays are raising questions about whether Nevada can overcome legal hurdles to execute its first inmate since 2006 and whether the political will exists to find a way to carry out capital punishment at all.
States, including Nevada, have increasingly run up against pharmaceutical companies who don’t want their products used in executions, with states like Texas, Georgia and Virginia changing laws to shield information about the drugs they use and others coming up with backup methods such as gas chambers and firing squads.
In an election year, few Nevada politicians are talking about possible changes to keep the death penalty viable while the state faces a court battle that’s expected to be lengthy.
“It will be quite a while before Scott Dozier is going to face an execution day,” said Deborah Denno, an expert in capital punishment law at Fordham University in New York.
Hours before Dozier was to die July 11, a judge blocked use of the sedative midazolam until at least September after drugmaker Alvogen sued. The state was expected to appeal the postponement to the Nevada Supreme Court.
Nevada’s three-drug plan would follow the sedative with fentanyl, the potent synthetic opioid that’s fueling overdose deaths nationwide, and a muscle paralytic called cisatracurium. Neither has been used in an execution, and critics have raised concerns Dozier could be conscious, unable to move and suffocating.
Dozier, a 47-year-old twice-convicted murderer who insists he doesn’t care if his death is painful, had his execution previously delayed in November.
If the courts block it again, Nevada could try to get drugs from a made-to-order compounding pharmacy. Texas and Georgia both use such pharmacies and have passed laws shielding the facilities’ identities.
Nevada could try to obtain a compounded drug from Texas, like Virginia did in 2015 before passing a law allowing prisons to use a secret compounding pharmacy.
But the made-to-order drugs can be expensive, and “Nevada may not want to make that kind of investment,” Denno said.
Dr. Jonathan Groner, a lethal injection expert and surgeon who teaches at Ohio State University, said there is no shortage of drugs that can kill people, “but each has problems and will cause endless litigation.”
“My guess is that most of the 79 death row inmates in Nevada will die of old age and not at the state’s hands,” Groner said.
Nevada law calls for capital punishment by lethal injection, so state officials would have to approve changes — and perhaps build new facilities — to switch to a different method.
It might consider joining Alabama, Mississippi, Ohio, and Oklahoma in a yet-to-be-employed method using nitrogen gas, Denno said. It asphyxiates a person in an airtight chamber through a lack of oxygen.
Nevada’s new death chamber is not airtight, prisons spokeswoman Brooke Santina said.
There also are firing squads, the method Utah decided in 2015 to use as a backup if lethal injection drugs can’t be found.
Nevada lawmakers and Republican Gov. Brian Sandoval have not called for changes to ensure executions can be carried out. Sandoval is term-limited, and his spokeswoman, Mary-Sarah Kinner, said he believes any change should come from the Legislature and next governor, who will be elected in four months.
Key candidates who could influence executions spoke in generalities or not at all about the future of the death penalty.
State Attorney General Adam Laxalt, a Republican running for governor who supports capital punishment, declined to comment. Democratic gubernatorial candidate Steve Sisolak supports the death penalty “in extreme cases” and has not called for laws to be changed.
The top two contenders for attorney general, Republican Wes Duncan and Democrat Aaron Ford, support the death penalty.
Duncan said he couldn’t comment on Dozier’s case because he may handle it if elected. He said he would be open to “alternate constitutional means of execution, including different drug cocktails.”
Democratic state lawmaker James Ohrenschall has called in the past for ending the death penalty as “costly, unfair and ineffective.” He said he hasn’t decided if he will try again when the Legislature meets next year.
Michael Green, a history professor at the University of Nevada, Las Vegas, said the death penalty is a question the state faces about links between its past and future.
“Is the death penalty a remnant of our ‘Old West’ past? Or is it something that a more modern Nevada should keep or get rid of?” Green said.
Kent Scheidegger at the Criminal Justice Legal Foundation, a California-based pro-death penalty group, blamed the Dozier delays on a public pressure campaign to starve states of the ability to enforce a punishment that many Americans favor for the worst murderers.
Dozier’s case “exposes Nevada’s death penalty as a costly exercise in futility,” said Scott Coffee, a deputy public defender in Las Vegas who has lobbied the Legislature for years to get rid of the death penalty.
“Even when someone is begging to be executed,” Coffee said, “we don’t really have means to carry it out.”