Nevada

Nevada has a three-drug protocol. The most recent execution occurred in 2006, after a condemned inmate voluntarily dropped his appeals. The state’s department of corrections has a history of secretiveness regarding its lethal injection protocol, but thus far challenges to the protocol have been unsuccessful.

Nevada’s lethal injection statute says “[t]he judgment of death must be inflicted by an injection of a lethal drug.”[1] Although this statutory language would seem to call for a one-drug lethal injection protocol, the statute goes on to say that “[t]he Director of the Department of Corrections shall . . . [s]elect the drug or combination of drugs to be used for the execution after consulting with the State Health Officer.”[2] Currently, Nevada uses three drugs in its lethal injection process.[3]

Twelve people have been executed in Nevada since 1976; of those twelve, all had voluntarily dropped their appeals[4] except for Richard Moran, who was executed by lethal injection in 1996.[5] The most recent execution in Nevada was the execution of Daryl Mack, who was executed by lethal injection in 2006 after voluntarily dropping his appeals.[6] Just prior to Mack’s execution, the Nevada Department of Corrections released to the Reno-Gazette Journal a redacted copy of its Confidential Execution Manual in response to a lawsuit filed by the newspaper under the Nevada Public Records Act.[7] Prior to this disclosure, Nevada was the only state that kept its lethal injection protocol secret.[8] The document is still not available on the Nevada Department of Corrections website, and the information on the site about the state’s lethal injection process says only that “[a]t the present time the lawful method of execution is by means of lethal injection.”[9] It also says that, “[a]t the time of this writing,” there are 77 inmates on Nevada’s death row at Ely State Prison,[10] which conflicts with a quarterly report from the NAACP Legal Defense and Educational Fund which as recently as January 2012 listed 80 Nevada death row inmates.[11]

Challenges to Nevada’s lethal injection protocol have so far been unsuccessful. In 2004, the Nevada Supreme Court rejected an argument brought by death row inmate Robert McConnell that the state’s lethal injection scheme posed an unconstitutional risk of cruel and unusual punishment because there was no codified protocol.[12] The court criticized McConnell’s argument, noting that “McConnell cites no authority from this or any other jurisdiction that deems lethal injection unconstitutional as a matter of law because of the absence of detailed codified guidelines for the procedure.”[13]

After the United States Supreme Court found that lethal injection does not violate the Eighth Amendment in its 2008 plurality opinion upholding Kentucky’s three-drug protocol,[14] McConnell sought habeas relief on the grounds that Nevada’s protocol, unlike Kentucky’s, does not provide sufficient safeguards against a “substantial risk of serious harm.”[15] The court rejected this argument, finding that a challenge to the state’s lethal injection protocol cannot be brought in a petition for habeas relief because it is not a challenge to the sentence itself.[16] A similar challenge brought by death row inmate William Witter was thrown out by the Nevada Supreme Court for the same reason.[17] Both McConnell and Witter currently remain on Nevada’s death row.[18]

As of February 2011, Nevada was seeking access to the federal supply of sodium thiopental, one of the drugs used in the state’s three-drug lethal injection formula, due to a supply shortage.[19] The shortage occurred when Hospira, Inc. stopped producing the drug after attempts to move production to Italy were blocked by Italian officials opposed to allowing manufacturing of a drug in their country which would be used to carry out executions.[20] Although no upcoming executions are anticipated, a spokesman for the Nevada’s Department of Corrections said the lethal injection guidelines were being reviewed.[21] Although some states such as Idaho have been exploring the possibility of buying lethal injection drugs from other countries such as India,[22] states’ options for dealing with the shortage of sodium thiopental could be affected by a 2012 ruling from U.S. District Court Judge Richard Leon which says drugs purchased by states from other countries for purposes of lethal injection are subject to the same FDA standards which apply to all other imported drugs.[23] The ruling was in response to an action brought by death row inmates in three different states.[24]

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[1] Nev. Rev. Stat. Ann. § 176.355.1 (West 2011).

[2] Id. at § 176.355.2(b).

[3] Associated Press, Drug used in lethal injection depleted, Nevada among states seeking new sources, http://www.lvrj.com/news/drug-used-in-lethal-injection-depleted-nevada-among-states-seeking-new-sources-115466764.html (accessed October 23, 2012).

[4] Reno Gazette-J., Nevada Department of Corrections lacks plan for executions due to prison closure, drug shortage, http://deathpenaltynews.blogspot.com/2012/05/nevada-department-of-corrections-lacks.html (accessed October 24, 2012).

[5] Associated Press, Nevada Executes Man Who Killed 3 People, http://www.nytimes.com/1996/03/31/us/nevada-executes-man-who-killed-3-people.html (accessed October 24, 2012).

[6] Associated Press, supra n. 3.

[7] Reno Gazette-J., Mack execution more open than previous deaths, http://lists.washlaw.edu/pipermail/deathpenalty/2006-April/004653.html (accessed October 24, 2012).

[8] Human Rights Watch, So Long as They Die, Vol. 18, No. 1(G), p. 21 n. 82 (April 2006).

[9] Nevada Dept. of Corrections, Department Organization, http://www.doc.nv.gov/?q=node/85 (accessed October 24, 2012).

[10] Id.

[11] NAACP Leg. Def. and Educ. Fund, Inc., Death Row U.S.A., 54-55 (Jan. 1, 2012).

[12] McConnell v. State, 102 P.3d 606, 615 (Nev. 2004).

[13] Id.

[14] Baze v. Rees, 553 U.S. 35 (2008).

[15] McConnell v. State, 212 P.3d 307, 310 (Nev. 2009).

[16] Id. at 311.

[17] Witter v. State, 281 P.3d 1232, n. 5 (Nev. 2009).

[18] NAACP, supra n. 11.

[19] Associated Press, supra n. 3.

[20] Id.

[21] Id.

[22] Creech v. Reinke, http://posting.boiseweekly.com/images/blogimages/2012/06/04/1338838239-execution_ruling.pdf at 40 (D. Idaho June 4, 2012).

[23] Beaty v. FDA, 853 F. Supp. 2d 30 (D.D.C. 2012).

[24] Id.