Quadruple killer’s execution challenge heard by top court

Nevada Supreme Court justices heard arguments Wednesday on whether state lawmakers need to give more instruction on how the Department of Corrections should carry out executions.

The case before the Supreme Court was brought by federal public defenders for Zane Floyd, who was sentenced to die for fatally shooting four people and gravely wounding another at a Las Vegas grocery store more than two decades ago.

Public defenders have argued in court records that the Legislature improperly delegated lawmaking powers by giving the Department of Corrections’ director the power to “unilaterally determine” the execution protocol.

On Wednesday, federal public defender Jocelyn Murphy argued that the current law requiring the director to set a protocol for executions while considering input from the prison system’s chief medical officer is too vague.

“But I think what could meet constitutional muster is, at a minimum, to specify the classes of drugs that the director is required to choose from, to guide him in making this decision,” she said.

She argued that the Legislature has the power to set a punishment such as the death penalty, but should detail more specifically how the punishment should be carried out.

Attorneys have also challenged Floyd’s execution protocol in federal court, after state officials intended to combine drugs that have never been used together to carry out a death sentence. Experts called by Floyd’s lawyers to testify in federal court have said the drug combination could cause extreme suffering while Floyd is paralyzed and suffocating.

U.S. District Judge Richard Boulware has said the federal case may be considered moot and could be dismissed since some of the drugs the state intended to use have expired, but court records show the case remains active.

Deputy Solicitor General Jeffrey Conner argued Wednesday that, in other cases, the Supreme Court has upheld the Legislature’s power to delegate lawmaking authority to state agencies.

“Does it matter that in this context, the state is taking a life?” asked Justice Kristina Pickering. “Does that alter the standard by which we should review the specificity of the delegation instruction?”

Conner answered that while an execution is the “height of government action,” those concerns are covered by the Eighth Amendment, which prevents cruel and unusual punishment.

“There’s no debate here that the Eighth Amendment limits the director’s discretion in setting forth a protocol,” he said.

Justice Linda Bell also pointed out that Nevada’s law on the death penalty seems to be “one of the least specific statutes out there,” and that other states spell out that a lethal injection must be delivered intravenously and end the person’s life.

Conner argued that Nevada’s law requiring the “injection of a lethal drug” is specific enough.

“I think the vast majority of the courts that have looked at this issue have it right, that the Legislature’s role is defining the crimes and the punishment, and it leaves the details of how to carry out an execution to the director of the Department of Corrections,” he said.

The high court has not given an indication when a decision in the case would be made.

Contact Katelyn Newberg at knewberg@reviewjournal.com or 702-383-0240. Follow @k_newberg on Twitter.