Nevada really, really wants to execute Scott Dozier. It’s even marshaled support from 15 other states to fight for the right to execute Dozier using an untried cocktail including never-before-used fentanyl, which is 50 times more potent than heroin. But pharmaceutical giant Alvogen, which produces one of the other drugs involved, has argued in federal court that its product, midazolam, was illegitimately obtained. The court ruled for the drug company; the Supreme Court opted not to upset the district court’s decision.
Now it looks like Nebraska will be the first state to experiment with fentanyl. The state plans to use the drug to execute Carey Dean Moore, 60, on August 14. And in Nebraska, unlike Nevada, the state’s withheld information about the source of the drugs it intends to use, which means pharma can’t sue yet.
The ACLU of Nebraska has tried to force the state’s hand, calling for a federal Drug Enforcement Agency investigation then suing for its results to be made public. In a similar challenge in Texas, its supreme court ruled that the state had to disclose its source of drugs. A district court judge followed suit, siding with the ACLU in June and ordering the state’s Department of Corrections to release the relevant records. Nebraska appealed instead of complying, and August 14 looms.
The ACLU emphasizes that if Moore’s execution proceeds, it will be shrouded in illegality related to open records laws. But, of course, there’s another legal question mark: What will fentanyl mean for states’ hunt for a new, constitutional lethal injection procedure—and for Moore?
There’s a shortage of execution drugs due to pharma’s bans on the use of their products to end a person’s life, itself related to growing opposition to capital punishment. Pharmaceutical firms have been coming out (and/or banning, when it became practicable to do so) the use of their products for capital punishment for nearly 20 years.
States went to great extremes to try to retain access to one of the original drugs of choice, thiopental. When in 2010 a firm stopped producing then banned thiopental, states started importing the foreign, non-FDA approved version of the drug.
When Hospira discontinued thiopental, some states began to quietly buy unregulated, non-FDA approved thiopental from a wholesaler in London. In 2010, Britain responded by implementing an export control on thiopental; this control was later adopted more generally by the European Union, none of whose members practice capital punishment. Eventually, a federal appeals court in Washington shut down importation of unapproved thiopental altogether.
Hospira’s move in 2010 kicked off a panic among state governments. An e-newsletter from approximately that period noted that Texas had two doses left for 317 death-row prisoners; Ohio had just one dose.
Now, states experiment, as Nebraska wants to do on August 14. That’s despite the history of excruciating deaths linked to cocktail-tinkering. Of course, Arkansas is actually fighting to use midazolam, which was the culprit in a number of prolonged, apparently painful executions. They’re also looking to “new” methods of execution: firing squads and nitrogen gas. As with fentanyl, there is no evidence these methods will be more humane.
If the ACLU can break through in Nebraska, obtaining public records, pharma will have a chance to object as in Nevada. There, they cited the use of drugs as a public health risk:
“When the medicines could be used to protect life, they are instead being used to end it,” the companies state. Using their medicines in executions “runs counter to the manufacturers’ mission to save and enhance patients’ lives” and creates a shortage for patients who need the drugs as well as a public-health risk, the companies write in the brief.
Of course, the core claim would likely be fraud: In both Arkansas and Nevada, the companies in question alleged fraud, essentially, in how the states obtained the drugs intended for use in executions, ranging from misrepresenting the purchase to accepting a refund then refusing to return the drugs.
For the time being, pharmaceutical companies are the key actors blocking executions—until the Supreme Court changes. The Supreme Court ruled in 2015 that a method of execution isn’t unconstitutional under the Eighth Amendment, which prohibits cruel and unusual punishment, unless it’s used despite “a known and available alternative method of execution that entails a lesser risk of pain.”
When states finally give up on using drugs, we could challenge the use of more brutal means of execution under that 2015 standard, sure. But if it were Brett Kavanaugh applying the standard, that challenge would fail.