Nevada to become first state to execute inmate with fentanyl

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Nevada plans to carry out the first execution using fentanyl, a drug at the heart of the US opioid epidemic, on Wednesday.

The state intends to use a synthetic opioid – involved in more than 20,000 overdose deaths in 2016 alone – to kill Scott Dozier, a double murderer, after finding it difficult to obtain other drugs for Nevada’s first execution in 12 years because of opposition from pharmaceutical manufacturers.

But questions have been raised about whether Nevada’s department of corrections broke the law to obtain the fentanyl, and whether the multibillion dollar distribution company that provided the drug ignored evidence it was to be used in an execution.

Fentanyl has moved to the centre of the opioid epidemic as a powerful and dangerous illicit powder, one hundred times more potent than morphine and frequently mixed with heroin or pressed into fake prescription pills. But it is also sold as a prescription painkiller, including a version for injection which can kill in higher dosages.

“Using fentanyl in an execution is particularly strange and confusing because of its place in the opioid epidemic,” said the legal director of the American Civil Liberties Union in Nevada, Amy Rose. “But on top of that it’s never been used in an execution before. It’s extremely experimental. There is a very real risk of a botched execution.”

Dozier will be injected with fentanyl and two other drugs. One of them is a sedative, midazolam, involved in a number of executions where the condemned man has been seen convulsing, gasping and in evident pain before death.

“It has been at the centre of executions that have gone visibly wrong in every single state in which it has been used,” said Maya Foa, the director of the anti-death penalty group Reprieve. “Now it’s being used with fentanyl. This is an entirely novel protocol across the United States.”

Foa said that states are usually obliged by the appeals process to subject the planned method of execution to legal scrutiny, particularly when a new drug protocol is being used. But Dozier has waved appeals and said he wants to die so the combination of medicines to be used to kill him has not been examined in court.

Death penalty states have been forced to find different cocktails of drugs for executions in the face of opposition from manufacturers to having their medicines used in lethal injections . That has led states to try whatever mix of drugs they can buy, often in secrecy.

The Nevada authorities refused to make public how they obtained the fentanyl and other drugs, but last week the ACLU won a court ruling forcing the department of corrections to hand over invoices. They show that it placed multiple small orders over a number of months, sometimes just one day after the previous order. It is not clear if this was an attempt to avoid drawing the attention a single large order of fentanyl would bring.

The drugs were ordered from one of the US’s largest pharmaceutical distribution companies, Cardinal Health, which is among wholesalers facing a barrage of lawsuits accusing them of profiteering from the opioid epidemic by delivering vast quantities of prescription painkillers to small pharmacies and ignoring evidence they were being used by people addicted to the drugs.

Rose said the rights group is examining why the distributor delivered the drug to the Nevada prison authorities even after it was publicly known they intended to use fentanyl to kill Dozier.

“It’s concerning that Cardinal Health would sell it to the department of corrections if it knew the drugs would be used in executions,” she said.

Rose said the ACLU is seeking more documentation to see if the Nevada authorities “lied to Cardinal in any way”.

Last year, Cardinal Health paid a $44m fine for failing to adhere to regulations intended to prevent opioids falling into the hands of those addicted to the drugs. The company was not immediately available for comment.

The ACLU has also raised questions about the legality of the state’s actions in buying the drugs. The law allows only those doctors and medical institutions with a Drug Enforcement Administration-issued licence to obtain and administer scheduled medicines. Rose said it appears that the fentanyl was bought by one arm of the prison authorities with the necessary licence but then passed on to the execution site where there is no such authority to handle what is supposed to be a tightly controlled drug.

“The DEA licence they used to obtain these drugs is the regular department of corrections hospital clinic in Las Vegas. But the department of corrections doesn’t have a licence to administer the drugs at the execution,” she said.

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