Ohio executes killer: Was untested lethal injection 'cruel and unusual'?

Ohio execution of killer used an untested form of lethal injection, and it took almost 25 minutes for the inmate to die. Opponents of capital punishment want a ban on such executions.

An Ohio inmate took almost 25 minutes to die in an execution on Thursday that used a controversial duo of drugs never before used in the United States. The execution of the convicted killer, during which he gasped and snorted, has revived a brimming debate nationwide about the legality of using untried drug cocktails to complete death sentences, as well as a broader reflection on what constitutes “cruel and unusual" punishment.

Inmate Dennis McGuire was executed with an untested combination of drugs: 10 mg of midazolam, a sedative; and 40 mg of hydromorphone, an opiate derivative. The event followed Ohio’s announcement in the fall that it had run out of its usual lethal injection drug, pentobarbital.

The state’s turn to invention parallels the scramble for alternative lethal injection methods that has unfolded in several other states’ death houses since 2011, when the Danish manufacturer of pentobarbital banned selling the drug to US prisons. The producer was protesting America’s practice of capital punishment.

The subsequent hunt for alternatives to pentobarbital has become the subject of an often-emotional debate on whether the new execution methods could produce extreme suffering for the condemned – a debate that reached a new level this week after Mr. McGuire’s execution appeared to corroborate his defense team’s contention that the drug cocktail could make their client suffocate for up to five minutes before death.

In the execution Thursday morning, McGuire was quiet for the first five minutes but then began to make “loud snorting noises” and display “irregular breathing and gasping” for at least 10 minutes, an Associated Press reporter who witnessed the execution said. The reporter called it “one of the longest executions since Ohio resumed capital punishment in 1999.” 

“From the reports we are getting, it sounds like everything we suggested to the court would happen did in fact happen,” says Allen Bohnert, McGuire’s attorney, who was not a witness.

John Paul Rian, an attorney for McGuire's family, says he plans to file a lawsuit against the state over the execution.

“It’s hard to imagine a crueler way to exact punishment,” Mr. Rian says of the execution. “This was a clear violation of the Eighth Amendment.”

The lawsuit will seek a ban on Ohio’s use of the drug cocktail, he says. McGuire’s defense team and the advocacy group Ohioans to Stop Executions have also asked that Gov. John Kasich (R) issue a moratorium on all state executions. Ohio has 12 pending executions, the next of which is scheduled for March 19, and 139 inmates on death row.

McGuire was sentenced to death for the 1989 rape and fatal stabbing of Joy Stewart, who was in her early 20s and pregnant at the time. He was convicted in 1994 and admitted his guilt in a letter to Governor Kasich last month.

Three days before McGuire’s execution, a federal judge rejected appeals from his lawyers that the untried drug process could make the prisoner experience “air hunger,” a state in which someone is conscious and trying to breathe but cannot take a breath. David Waisel, a Harvard anesthesiologist hired by defense attorneys, said at a hearing this week that McGuire would experience “terror” for at least five minutes.

The state’s anesthesiologist, though, disputed those findings.

“Within a few minutes, the inmate will become sleepy and his breathing will begin to slow and become more shallow,” wrote Mark Dershwitz, the state’s expert and an anesthesiologist at the University of Massachusetts, in his declaration. Mr. Dershwitz, who has provided expert opinions for lethal injection cases in 17 states, said that the window during which McGuire would be conscious and aware of air hunger would be minimal, if it existed at all.

Judge Gregory Frost sided with Dershwitz’s findings on the grounds that Mr. Waisel had used outdated data on which to base his assessment. But he also acknowledged that – since the procedure was untested – there was not enough scientific information to conclusively support either side.

His ruling rested less on the experts’ dueling findings and more on the contention that the risk of the execution going wrong was “acceptable.”

“There is absolutely no question that Ohio’s current protocol presents an experiment in lethal injection processes,” Judge Frost wrote. “To pretend otherwise, or that either of the experts or this Court truly knows what the outcome of that experiment will be, would be disingenuous.”

“But as odd as it sounds, this is not a problem until it is actually a problem,” he wrote.

Frost ordered that the drugs and syringes be preserved after the execution for possible testing, as a concession to the defense.

Anti-death penalty advocates said that the execution should supply sufficient evidence to bring at least a temporary halt to capital punishment in the state.

“This was acknowledged to have been an experiment from the get-go,” says Kevin Warner, director of Ohioans to Stop Executions. “That experiment has failed.”

Megan McCracken, a researcher at the University of California’s Berkeley School of Law's Death Penalty Clinic, said in an e-mail that while “it is impossible to say what Mr. McGuire experienced while dying ... what is clear is that the execution did not go as planned, and there is, at the very least, a substantial risk that Mr. McGuire experienced extraordinary pain and suffering.”

“Mr. McGuire's execution took significantly longer than executions using a single dose of pentobarbital or thiopental,” she says, “and the movements and noises reported by eye witnesses present a stark contrast and troubling contrast to the executions using these other drugs.”

If McGuire did experience pain, not everyone agrees that this would be a problem. Proponents of the death penalty have argued that the case is overhyped and that condemned prisoners are not entitled to entirely pain-free deaths.

“Nobody has a right not to feel any pain during an execution,” says John McAdams, a professor of political science at Marquette University in Milwaukee who supports the death penalty. “The fact that a particular form of execution may sometimes be blundered does not make it unconstitutional.”

The fact that Ohio turned to the two-drug cocktail to bypass a ban on its preferred drug, with seemingly worse results, is an ironic spin, Professor McAdams says.

Pentobarbital, which is often used in the euthanasia of animals, is itself a controversial drug. Waisel, the defense’s lethal injection expert, had testified in a 2011 case in Florida that pentobarbital would cause the inmate extreme pain. The drug was introduced as a replacement to sodium thiopental that year, after the Illinois-based producer of that drug refused to continue selling it to prisons, in protest of capital punishment. 

[Editor's note: The original version of this article misstated the number of executions scheduled in Ohio. There are 12 pending executions].