Nevada Must Not Allow A Death Row Inmate To 'Volunteer' For Execution By Fentanyl And Other Drugs

The plan to execute Scott Dozier threatens to violate the Eighth Amendment.

Last Thursday, the ACLU launched a petition drive aimed at convincing Nevada’s governor to stop the execution of Scott Dozier. A convicted murderer, Dozier has ended all of his legal appeals and asked that his capital sentence be carried out without further delay. He is scheduled to be put to death on Nov. 14.

If Dozier gets his wish, he would be the first in Nevada since 2006 and the 22nd execution in the United States this year. He also would be the 142nd “volunteer” to be executed since the United States resumed executing people in 1976.

Nevada intends to kill Dozier using a previously untested lethal injection protocol, including the controversial drug fentanyl, which has played a large role in America’s opioid epidemic.

But Dozier’s execution raises serious questions about whether death row inmates should be allowed to waive their legal rights and volunteer to die, especially when the methods used to kill them risk violating the Eighth Amendment’s prohibition of cruel and unusual punishment.

Dozier is by no means a sympathetic character. Having previously been convicted of second degree murder in Arizona, he was found guilty and sentenced a decade ago for a gruesome murder. Dozier robbed and killed 22-year-old Jeremiah Miller in a Las Vegas motel. He cut his corpse into pieces, and Miller’s head, arms and legs have never been found.

On Oct. 31, 2016, Dozier wrote to District Judge Jennifer Togliatti, informing her that he wished to waive all remaining appeals and be put to death as expeditiously as possible. He told friends and family that “he is tired of life [and that] he envisions his path to the execution chamber.” He told a lawyer:

Perhaps there’s some fundamental differences in our philosophies of life. And I think I recognize this causes you cognitive dissonance because it’s just never going to make sense. But I think you find life has a deeper inherent value than I believe, especially in mine.

While controversial, courts have consistently upheld the right of death row inmates to forgo their appeals, so long as they are “competent” to make that decision. As the Supreme Court put it in a 1966 decision, judges hearing such requests need to assess whether a death row inmate “has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation.”

But can decisions when made on death row ever be “competent” and “rational”? Conditions there are dreadful, by any standard, enough to make us question whether inmates can feel free in any sense to make life and death decisions. And almost 90 percent of those who have waived their appeals in death cases suffered from some form of mental illness at the time they made their decisions.

In Dozier’s case, there is a further complication beyond his request to be executed promptly. The method Nevada intends to use for his execution raises serious questions. While Dozier has said that if it were up to him he would like to die by firing squad, he acknowledges that the decision is not his.

Nevada, having failed in its efforts to obtain other drugs more commonly used in American executions, will use a new and untested lethal injection protocol. That protocol involves the sedative diazepam (better known as Valium), the muscle relaxant and paralytic cisatracurium and the opioid fentanyl.

As one commentator recently observed, “You got something that’s killing hundreds of people a day across the United States. And you got prisons who can’t get death penalty drugs, so they’re turning to the drug that’s killing hundreds of people across the United States. This sounds like an article from the Onion.”

In addition, both the combination and sequence of drugs seem odd, since fentanyl and diazepam each cause unconsciousness. If taken in large enough doses, either can bring about death.

When other drugs, like midazolam, have been used in executions, there have been dosing problems, and one wonders whether the state wishes to administer two such drugs as if to circumvent those risks.

And, if the other drugs don’t work, cisatracurium will prevent Dozier from registering pain, even as he experiences the feeling of being unable to breathe and suffocating to death.

We have no idea how this drug cocktail will affect Dozier, but there is little reason to have faith in its effectiveness. Lethal injection, even when it used a standard drug protocol for decades, was America’s most unreliable method of execution.

Because Nevada’s protocol is at best “experimental,” wrote a former county prosecutor, “the risk of a botched execution is real.”

The late Supreme Court Justice Thurgood Marshall once said that “the Eighth Amendment not only protects the right of individuals not to be victims of cruel and unusual punishment, but ... also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments.”

Nevada’s plan to execute Scott Dozier threatens to violate the Eighth Amendment. For that reason, the decision to die should not be left to him.

Nevada’s governor needs to act to protect the “fundamental interest” that Marshall described. The governor can do so by stopping his state from proceeding with what can only be deemed a cruel form of human experimentation.

Originally published US News and World Report, November 6, 2017