Ohio execution raises legal, ethical questionsDeborah Denno in USA Today, January 17, 2014
Details of the Ohio execution of rapist and murderer Dennis McGuire are forcing legal and ethical questions about the use of a combination of drugs never before applied in a U.S. capital punishment case.
The Thursday incident, where McGuire gasped for air and took almost 26 minutes to die by one account, is likely to unleash a series of death row challenges for Ohio's capital punishment system and possibly a probe into the execution.
"There are going to be officials in Ohio, likely from the governor on down, who will want to know more about this," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment. "Officials may call for an investigation."
Ohio prisons spokeswoman JoEllen Smith had no comment on how the execution went, but said a review will be conducted as usual.
An immediate and "bigger issue," Dieter said, is the executions scheduled in Ohio through 2016. It's likely lawyers representing those 12 death row inmates "are already filing papers" to halt or block executions in which lethal injection was to be applied, Dieter said.
Four more executions are scheduled in Ohio for 2014, with the next one set for March 19. Raymond Tibbetts, who was found guilty of the 1997 stabbing and beating deaths of his wife and his landlord in Cincinnati, is scheduled to die Oct. 15.
"The courts that get these challenges are going to be more careful to treat these objections – not just as last-minute desperate delays – but perhaps as having some merit," Dieter said.
The family of McGuire – a Preble County man sentenced to death for the 1989 rape and fatal stabbing of a pregnant newlywed, Joy Stewart – said Friday they plan to file a lawsuit over his death, which they are calling unconstitutional.
"All citizens have a right to expect that they will not be treated or punished in a cruel and unusual way," defense lawyer Jon Paul Rion, representing McGuire's adult children, said Thursday. "(Thursday's) actions violated that constitutional expectation."
The deadly injection used in McGuire's execution included two drugs not combined before for an execution in the U.S.: midazolam, a sedative, and hydromorphone, a morphine derivative.
The state switched to the new drugs after manufacturers refused to sell pentobarbital, the single drug used before.
McGuire's lawyers had attempted last week to block the execution, arguing that the untried method could lead to a medical phenomenon known as "air hunger" and could cause him to suffer "agony and terror" while struggling to catch his breath.
The use of lethal injection has been legally and ethically debated for decades. Physicians have argued the penalty is against their Hippocratic Oath. The American Medical Association's official opinion instructs physicians not to participate in legal executions.
"As a country, we've decided to go this route where we make executions look like outpatient surgeries, but the problem is that most of the people who are able to make them the most humane are ethically forbidden to attend," said Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University's College of Medicine. "It's immoral for physicians and nurses to take the skills they apply for healing and use them for killing."
That leaves the job of delivering lethal injections to a team of trained correction workers.
"Ohio has had a pretty bad track record," Groner said, recalling two cases in which technicians had trouble finding a usable vein in the condemned inmates to inject the lethal drugs.
In 2009, technicians spent more than two hours trying to find a usable vein in Romell Broom. His legal team filed an injunction, and he remains on death row.
While 32 states have the death penalty on their books, 13 haven't executed an inmate in at least five years, according to data from the Death Penalty Information Center.
"The very first lethal injection 32 years ago was problematic," said Deborah Denno, a law professor and death penalty expert at Fordham University in New York City.
Still, lawsuits filed by families of executed inmates claiming the violation of the Eighth Amendment, which bans cruel and unusual punishment, are tough to win, said Denno.
One of the biggest challenges is that families must prove there was damage and suffering to the executed individual.
"The worst part of that issue is that you don't know," she said. "The person dies."
Also, Denno noted that agencies involved in executions are often protected by immunity, making details about the incident difficult to obtain.
"There is no incentive for the Department of Corrections to offer information or find out what went wrong," she said. "This family is going to have to get around this barrier."
A few minutes before McGuire was put to death at the Southern Ohio Correctional Facility near Lucasville, state prison director Gary Mohr said he believed planning would produce "a humane, dignified execution" consistent with the law.
McGuire, 53, reportedly made loud snorting noises. An Associated Press reporter who observed the execution said more than 25 minutes passed between the time the lethal drugs began flowing and McGuire was pronounced dead at 10:53 a.m.
McGuire's lawyer called on Republican Gov. John Kasich to impose a moratorium on future executions, as have numerous anti-death penalty groups.