By Thomas Viloria

As a prosecutor with the original Major Violators Unit of the Washoe County District Attorney’s office, I sought the death penalty in five first-degree murder cases.

But I am very disturbed that the state of Nevada is about to execute a prisoner for the first time in more than 12 years, using an experimental drug combination that presents grave concerns about possibly torturous side effects. In any other case in this country, the experimental drug protocol would be challenged as unconstitutional by attorneys representing the inmate. But the prisoner to be executed has given up his appeals and asked to be put to death (a so-called “volunteer”), so he is not contesting the experimental drug combination.

Much has changed since the last Nevada execution was conducted in April 2006. The drugs historically used in lethal injection are no longer available due to manufacturers’ unwillingness to have their products used in executions. A dozen states have repealed their death penalty laws or imposed moratoria on pursuing new death sentences. Most states are not using the death penalty, even if it is still in their laws.

Yet on July 11, the state of Nevada is planning to put Scott Dozier to death, based on his wish to die. Those with the highest executive and judicial authority in this state say they cannot stop it. The governor claims that he is powerless to halt the execution. The attorney general is aggressively pursuing the execution, but also represents the Department of Corrections (DOC) and sees nothing wrong with the DOC using a never-before-tried drug combination that presents a very real danger of a botched execution (one in which the inmate dies, but the process is seriously mishandled and causes unnecessary agony).

I am especially appalled that the state intends to use a combination of drugs on Mr. Dozier that has never before been tried in an execution. There are many unanswered questions about this experimental drug cocktail. If the diazepam expired on May 1st (as the DOC has acknowledged), where did they get more, because the manufacturer prohibits its use in executions? If they didn’t get more diazepam, what drug are they substituting? If, as rumored, the DOC is planning to use midazolam instead of diazepam, why isn’t the DOC or the governor concerned about the number of seriously botched executions in Ohio, Oklahoma, Arizona and Alabama that have involved the use of midazolam? And what effect will the paralytic drug have?

The Nevada Supreme Court declined to decide whether that drug was constitutionally permissible, although a lower court judge ruled that the paralytic could not be used because of concerns about a possibly unconstitutional torturous death. These are some of many important questions about the effectiveness and propriety of the proposed drug protocol that will go unanswered simply because Mr. Dozier is a “volunteer” who has declined to pursue his available legal challenges.

If Mr. Dozier weren’t “volunteering,” the DOC would not be proceeding with this dangerously experimental drug combination. There would be significant litigation about whether the proposed drug cocktail was effective and appropriate as there has been no finding by any court that this combination of drugs is constitutionally acceptable. The only reason the state is able to prepare to carry out this execution is because no one other than Mr. Dozier can challenge the proposed experimental drug combination. (Editor’s note: The ACLU has opposed this.)

There are perils in proceeding because the likely substitution of midazolam presents a very real danger of a botched execution. Even without midazolam, there’s danger of unnecessary and cruel suffering because prison staff has not conducted any execution in over a decade, let alone with this unusual combination of drugs that the DOC admits is still “evolving.” An additional concern is that the DOC may find it difficult to obtain these drugs in the future even for therapeutic treatment, because the manufacturers won’t be able to ensure that they won’t be impermissibly used in an execution.

As a former prosecutor, I hope that the Governor understands what an enormous risk it is to allow the Department of Corrections to proceed with the execution of Scott Dozier using an experimental combination of drugs.

I urge Governor Sandoval to stop this execution from going forward based on grave concerns about the possibility of an unconstitutional or botched execution.

Mr. Viloria prosecuted death penalty cases in the Major Violators unit of the Washoe County District Attorney’s office. He is now in private practice in Reno.