Idaho AG Lawrence Wasden Backs Nevada In Death Penalty Case

Aug 9, 2018

Idaho’s attorney general has added his support for Nevada in a recent court filing as the state tries to carry out its first execution since 2006. 

Drug maker Alvogen has sued the state of Nevada and temporarily stopped the execution of Scott Raymond Dozier. The company claims state officials illegally bought midazolam, a sedative it makes, which has been used as part of a new lethal injection cocktail.

Advocates for repealing the death penalty argue midazolam has contributed to "botched executions" as states scramble to find different drugs to replace long-used ingredients. Several years ago, the European Union banned the export of these drugs if they're used to carry out a death sentence.

Idaho Attorney General Lawrence Wasden recently joined 14 other states in writing a friend of the court brief supporting Nevada. They say pharmaceutical companies shouldn’t be able to file these last-minute lawsuits, calling it a "guerilla war against the death penalty."

The group of states also argue these types of lawsuits are being used to stall for time as more and more manufacturers have forbidden corrections officials in the U.S. from using their drugs to carry out the death penalty. They say companies don't have to permanently block an execution to find an "end-run" around capital punishment.

"Instead, they merely have to result in an injunction preventing a state from carrying out an execution on the scheduled date. And that alone might delay an execution long enough that a state’s drugs could expire."

But Alvogen says it has no opinion on the death penalty. In its original complaint, the company says it specifically contacted officials in states that still carry out executions earlier this year, telling them it would not sell midazolam for non-therapeutic purposes. 

"This pharmaceutical company really has no obligation to sell their drugs to anyone they don’t want to sell it to," says Shaakirrah Sanders, a professor with the University of Idaho's College of Law.

Sanders, also an ACLU of Idaho board member, says as long as there’s no federal requirement to supply these drugs, companies can block states from buying it for the use of executions.

“Whatever tomfoolery has happened from states in the past, I think, it’s going to be very difficult moving forward to continue those activities in order to obtain these drugs.”

In signing on to the brief, she notes Wasden is showing his support for Nevada -- it doesn't necessarily signal the state's intent to make similar purchases of these drugs. A spokesperson for the attorney general declined to comment for this story.

It's unclear what drugs Idaho currently has in stock to carry out an execution. None are scheduled for any of the nine people who currently sit on death row. Idaho has executed only three people since 1977.

State officials are currently fighting an order to release drug inventory records after Sander's colleague, Aliza Cover, and the ACLU of Idaho, sued the state Department of Correction. ACLU lawyers in that case say they've received some records, but that they were "heavily redacted" and incomplete. They expect a decision by the end of August.

A Nevada judge will hear arguments on the Alvogen case in mid-September.