Fordham Law


Ohio Execution Using Untested Drug Cocktail Renews the Debate Over Lethal Injections

Deborah Denno in The New York Times, January 16, 2014

Media Source

Dennis McGuire took 15 minutes to die by lethal injection Thursday morning at the Southern Ohio Correctional Facility in Lucasville for the 1989 rape and murder of a 22-year-old pregnant woman named Joy Stewart.

Eyewitness accounts differ slightly on how much Mr. McGuire, 53, struggled and gasped in those final minutes. But because the execution took unusually long and because Ohio was using a new, untested cocktail of drugs in the procedure, the episode has reignited debate over lethal injection.

States have been scrambling in recent years to come up with a new formula for executions after their stockpiles were depleted or expired when European manufacturers of such previously used drugs as pentobarbital and sodium thiopental stopped selling them for use in executions. No consensus has formed on what available drugs should be used.

Mr. McGuire was given midazolam, a sedative, and hydromorphone, a powerful analgesic derived from morphine, just before 10:30 a.m. on Thursday, the first time that any state has used that combination. The drugs were selected by the Ohio Department of Rehabilitation and Correction after the state’s supply of pentobarbital expired in 2009, said JoEllen Smith, the department’s spokeswoman. A federal court had approved their use, she said.

A reporter for The Columbus Dispatch, one of the witnesses at the execution, described Mr. McGuire as struggling, gasping loudly, snorting and making choking noises for nearly 10 minutes before falling silent and being declared dead a few minutes later. An Associated Press report described him as snorting loudly and making snoring noises, but did not say he struggled or made choking sounds.

“Whether there were choking sounds or it was just snorting, the execution didn’t go the way it was supposed to go,” said Deborah Denno, a professor at Fordham Law School and an expert in lethal injection cases. “Usually, lethal injection takes about four or five minutes, if done properly.”

Death penalty opponents had been watching the case closely, both because of the new drug cocktail and because some anesthesiologists said there was a danger they would produce a condition called air hunger, in which the gasping victim is unable to absorb oxygen.

“A different procedure was used in the last four executions, depending on which state they were in,” Ms. Denno said. “It certainly increases the likelihood or the risk that there will be some sort of problem.”

But death penalty proponents said the episode was being sensationalized.

“Some of the witnesses say he was heard to make snoring noises,” said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation. “O.K., I’ve made snoring noises. What’s not disputed is he got a large dose of sedative. We’ve gotten namby-pamby to the point that we give murderers sedatives before we kill them.”

Death penalty opponents say other troubling executions argue against experimenting with new drug combinations.

Last week, they say, Michael Lee Wilson, who took part in the murder of a co-worker, was executed in Oklahoma using a cocktail of pentobarbital from a compounding pharmacy; vecuronium bromide, a paralytic; and potassium chloride, which stops the heart. His last words, coming about 12 seconds after the injections were administered, were, “I feel my whole body burning.”

Ms. Denno said: “I certainly believe there has been an increase in problems. “I think this is the worst situation that lethal injection has been in since it was first administered 32 years ago.”

Death penalty supporters believe this is the wrong lesson to draw.

“The main point to be emphasized,” Mr. Scheidegger said, “is the inmate does get a sedative as the very first thing. However distasteful it may be to observe, he is not in any kind of extreme pain that ought to concern us.”

Correction: January 17, 2014
An earlier version of this article misstated the year of  the rape and murder for which Dennis McGuire was convicted. It was 1989, not in 1994, which was the year of Mr. McGuire’s conviction.