The American Civil Liberties Union of Nevada plans to deliver a petition to Gov. Brian Sandoval on Monday, asking him to urge the prisons director to refrain from using a lethal injection drug combination that’s never before been used to carry out the death penalty.
Although there are a range of ways to stop an execution in Nevada, ACLU officials believe this is their best hope for staving off the ultimate punishment of inmate Scott Dozier, who has been convicted of two murders but voluntarily abandoned his appeals and is urging the state to carry out the penalty. The execution, originally scheduled for Tuesday, is on hold over concerns about the lethal injection method and now hinges on an order from the Nevada Supreme Court; it’s unclear when that will come.
“Without more details about the state’s plan, it is not clear if the execution will be humane or violate the Constitution,” the ACLU said in its petition, which has more than 600 signatures. “We need your help to get Governor Sandoval to stop this execution while so many questions remain about it.”
With laws on the death penalty varying dramatically from state to state, governors play a central role in the practice. They can veto bills to abolish the practice and wield the power to call off an execution — wide authority that adds weight to the outcome of Nevada’s 2018 gubernatorial election.
Sandoval, a former federal judge, included funds for a new execution chamber in his 2015 budget proposal and signaled his opposition to a death penalty abolition bill that emerged in the 2017 legislative session but was never brought up for a vote and died in committee. He said he supports the death penalty even though he’s Catholic and some of his faith’s leaders are adamantly against it; Pope Francis declared in October that the practice was “contrary to the Gospel.”
“It’s obviously difficult for me, I’m Catholic,” Sandoval said in an interview with The Nevada Independent in late October. “But at the same time, I’ve always supported the death penalty, and the egregious circumstances whereby an operation of law, a jury of his peers has made that decision … I support the Nevada law.”
He’s also expressed confidence in the lethal injection cocktail that the ACLU wants him to block.
“I don’t know if I’d call it unknown,” the governor said. “I’ve got to rely upon the expertise, the medical expertise, of the state medical officer, and based on his analysis and recommendations, he feels that it’s going to work, so I trust his judgment.”
A governor’s role
An execution can be held off for a variety of reasons, most commonly as a conviction or sentence is appealed. It can also be stayed while a court investigates the offender’s mental sanity or intellectual capacity, or if the inmate is pregnant.
But Nevada law also provides other routes.
The state Constitution empowers a governor to “grant reprieves for a period not exceeding sixty days dating from the time of conviction, for all offenses, except in cases of impeachment.”
The ACLU, citing the minutes of a constitutional convention in 1864, interprets that language as granting the governor the chance to postpone the imposition of a sentence by up to 60 days at a time. The intent, according to framers’ dialogue, was to allow time for a pardons board to convene and to avoid giving unfettered pardoning power to a single person.
The constitution lays out a more permanent process: The State Board of Pardons Commissioners, which includes Sandoval, Attorney General Adam Laxalt and all seven justices on the Nevada Supreme Court, can commute (reduce) a sentence. That happens if at least a majority of members vote to do so, and the governor must be among the group voting in the affirmative.
The board typically meets twice a year — most recently last week — and has wide latitude to reduce sentences or pardon people (nullify the consequences of the original conviction, such as loss of voting rights, loss of the right to bear arms, or occupational licensing restrictions). But while it’s technically an option, observers say Dozier’s case has virtually no chance of ending up there.
“It’s really the wrong vehicle,” said Scott Coffee, a Clark County public defender who’s been active on death penalty issues. “It’s like trying to take a sailboat through the Mojave Desert.”
For one, Nevada Administrative Code says the board won’t consider applications for a commutation or pardon from someone sentenced to death unless they’ve exhausted all available judicial appeals. Dozier has voluntarily given up further appeals but could reverse course on that decision if he chooses.
Second, there are timeline hurdles. A petition for a commutation must be turned in 90 days before the Board of Pardons Commissioners meets; the next meeting is expected to be in May.
Third, pardons and commutations are typically only handed down in extraordinary situations, such as when a prisoner has shown exceptional conduct or when there’s been a drastic change in circumstances since conviction. A pardon granted last week to Fred Steese, for example, came after new evidence emerged in his murder case, and a lower court judge ruled he was actually innocent.
Commutations are rare: the board has historically received about 1,000 petitions for commutation each year, grants hearings in about 20 cases a year and actually hands down a commutation in about half of those cases. Pardons, which are usually granted in cases where there’s been a significant amount of time since the person was discharged, were handed down 11 times in 2016.
The governor retains significant power in the pardon and commutation process — he has discretion to remove any application from consideration by the board even if staff approve it for board review.
Only one death row inmate has been granted clemency by a Nevada governor since the U.S. Supreme Court reinstated capital punishment in 1976 — that was Thomas Nevius in 2002.
The pardons board, chaired by Gov. Kenny Guinn, unanimously commuted Nevius’ sentence from death to life without parole after the U.S. Supreme Court banned executions of people with “mental retardation.” Convicted of two murders, Nevius had been scheduled for execution three times but each instance was called off because of appeals.
Evidence of his disability was not properly provided during the trial phase, and several jurors said they wouldn’t have voted for execution had they seen it. According to an Associated Press article from the time of his pardon, Nevius, “whose lawyers said he knew something ‘good’ had occurred, murmured his thanks as officers led him away.”
Where do Nevada governor hopefuls stand?
Laxalt’s campaign did not respond to requests for comment about his position on the death penalty.
But according to the Nevada Appeal, which interviewed Laxalt Monday at a Carson City restaurant during the candidate’s statewide campaign launch tour, the perceived Republican frontrunner said he believes in the death penalty in spite of being a devout Catholic. The newspaper reported that he declined comment on the execution of Scott Dozier, noting that he’s representing the state and handling legal action related to the execution.
Jordan Smith, one of Laxalt’s subordinates, has been arguing in court on behalf of the Nevada Department of Corrections. The agency wants to use a three-drug combination in the lethal injection that includes a paralytic, but Judge Jennifer Togliatti has barred the third drug, citing a defense expert witness anesthesiologist who said it could mask signs that the other two drugs aren’t working and lead to Dozier being conscious of a “horrifying” suffocation death.
The state, which stands by the original three-drug cocktail plan, sought and received a stay of the execution so the Nevada Supreme Court can weigh in on the issue.
The Republican state treasurer said he generally supports the death penalty.
“The death penalty is the state’s ultimate punishment for a criminal defendant,” he said in a statement. “Am I morally opposed to it? No. But its use depends on the facts and circumstances of each case.”
The Clark County commissioner, former state lawmaker and Democratic gubernatorial candidate is opposed to the death penalty and welcomes discussion of abolition.
“It’s a tough debate, but it’s worthwhile having that discussion,” she said in an interview. “At some point, the cost to the taxpayer for all the appeals and the length of time and the individuals who have to be trained to make sure they get the right defense… It’s 20 years in some cases. So really what are we fighting over? The person should be in prison without the opportunity for parole. Make them have to think about what they did.”
She said Nevada’s independent streak explains some of the state’s death penalty trends — it’s had 12 executions in the past 40 years, far less than some states such as Texas but far from states that have had bans for more than 100 years.
“I do think Nevadans are pretty pragmatic as far as where they stand whether it’s on this issue or education or whatnot,” she said. “I don’t think we should assume just because we’re the West that we’re always so far to the right or so far to the left as far as that’s concerned. Texas wants to execute everybody.”
“It was never a deterrent,” she added. “Somebody that’s going to be bad is going to be bad no matter what.”
In an initial interview, the Clark County Commission chairman and Democratic candidate said he was against the death penalty.
“I’m opposed to capital punishment,” he said in a brief interview. “One, there’s a cost factor associated with it that’s significant. Two, I think there have been cases where it was proven that the wrong person was executed, and three, that I don’t think that I should play God in terms of determining who dies and who lives.”
But on Monday, his campaign sought to clarify that while Sisolak stands by his quote, he thinks capital punishment might be warranted in the most extreme cases such as that of Paddock, who killed 58 people and injured more than 500 on the Las Vegas Strip last month. The Paddock case is moot because the shooter killed himself.
The campaign and Sisolak did not clarify how they would define the most extreme cases.
The Republican political newcomer and bike shop owner said he supports the death penalty and would veto a bill to abolish it if the Legislature sent him one.
“While I can think of nothing more precious than human life, I believe the heinous crimes that are deemed punishable by execution per Nevada law warrant that distinction and are justified,” he said in a statement to The Nevada Independent.
He cited the high cost of death penalty cases and said he’d assign a committee to seek out efficiencies.
“Obviously, any person sentenced to death has the ability to file appeals,” he wrote. “But once those appeals are exhausted, and if the court determines that the death penalty was the right punishment, then the state penal system needs to do its job and complete the sentence.”
Riley Snyder and Jackie Valley contributed to this report.
This story was updated at 10:15 a.m. on Nov. 12, 2017 to add comments from candidate Jared Fisher and the approximate number of signatures on the ACLU petition. It was updated again at 1:30 p.m. on Nov. 13, 2017 to clarify candidate Steve Sisolak’s position.