July 24, 2020

Nevada Agrees to Return Supply of Execution Drugs to Manufacturers

Nevada prison officials agreed in April to relinquish the state’s unused supply of lethal injection drugs as part of a settlement to a lawsuit brought by drug manufacturers. The settlement marked an end to litigation that had been ongoing for nearly two years, and leaves Nevada with no current means of carrying out an execution.

In July 2018, Alvogen Pharmaceuticals, a producer of the sedative midazolam, filed a lawsuit against the state, requesting a temporary restraining order and injunctive relief precluding the state from using any Alvogen product in carrying out the execution of death row prisoner Scott Dozier. The lawsuit alleged that the state used “subterfuge” and clandestine means to illegally obtain the drugs, through a third-party supplier, for an unapproved purpose. Sandoz Inc., which produces cisatracurium (a muscle-paralyzing agent), and Hikma Pharmaceuticals, a fentanyl producer, later joined the lawsuit. The drugs in question each constitute a component of Nevada’s three-drug execution protocol. While the pharmaceutical companies argued that they did not want their products used in executions, the state countered that the companies had no control over how purchased products are ultimately used.

Finding that the Nevada Department of Corrections acted in bad faith when obtaining midazolam, a trial court judge granted a preliminary injunction in September 2018, which the state appealed. In January 2019, Mr. Dozier died from suicide. His execution would have been the first in the state since 2006. It was scheduled twice and subsequently stayed amid the challenges involving the state’s three-drug protocol. In October 2019, the Nevada Supreme Court vacated the district court’s preliminary injunction and dismissed the appeal as moot given Mr. Dozier’s death. The Nevada Supreme Court indicated that Alvogen could seek a new preliminary injunction should the need arise. Amid the litigation, much of the state’s drug supply expired. The state’s cisatracurium supply expired in June 2019, its midazolam supply expired in January 2020, and its supply of fentanyl is set to expire between mid and late 2021.

The April 2020 settlement requires Nevada to return its drug supply in exchange for a refund of the purchase price. While the settlement does not require Nevada to admit to any wrong doing, it was viewed as a major win for both Alvogen and death penalty opponents. Following news that a settlement had been reached, Nevada State Attorney General Aaron Ford indicated that upon relinquishing the drugs, the state would no longer have the drugs necessary to carry out an execution. Nevada currently has over 70 prisoners on death row.