Why Dennis McGuire had to suffer a horrible executionDeborah Denno in The Globe and Mail, January 17, 2014
State executions are never tidy affairs but the way a death row inmate was killed in Ohio this week is seen by observers as the latest sign of the chaos in which the American capital punishment system has plunged because of a scarcity of drugs.
Since European pharmaceutical firms refused in 2011 to sell barbiturates for use in executions, U.S. correctional authorities have struggled with a shortage, forcing them to experiment with new drugs, to order from compound pharmacies and even to hoard the remaining stockpiles.
“They’re engaging basically in acts of desperation. The states are under enormous pressure to continue with the death penalty,” Fordham University law professor Deborah Denno said in an interview.
“They’re doing everything they can to perpetuate this process. At the same time they have their backs against the wall because the drugs they have been using in the past are no longer available.”
Gasping and convulsing.
On Tuesday, Dennis McGuire, a convicted rapist and murderer, died at the Southern Ohio Correctional Facility after being the first inmate to be injected with a new combination of drugs, the sedative midazolam and the opiate pain-killer hydromorphone.
Mr. McGuire’s relatives were present and his daughter covered her ears as he gasped loudly for air and convulsed for up to 10 minutes, witnesses to the execution reported.
In a final bid at a stay of execution, Mr. McGuire’s lawyers had filed an expert opinion from an anaesthesiologist, David Waisel, who warned that Mr. McGuire could feel “a terrifying inability to obtain a breath” as a result of receiving the untested mix of midazolam and hydromorphone.
However, on Monday, U.S. District Court Judge Gregory Frost rejected Mr. McGuire’s application, saying he was skeptical about what he called the inmate’s “breathing-centric” argument. The judge cited instead the state’s expert, Dr. Mark Dershwitz, who predicted that “McGuire will not be experiencing terror but rather possible euphoria.”
Ohio resorted to the new drug cocktail, having run out of its supply of pentobarbital.
“The newness of this protocol and the obvious lack of human trials create a dearth of studies upon which to draw,” Judge Frost wrote in his decision.
“There is absolutely no question that Ohio’s current protocol presents an experiment in lethal injection processes.”
Backed into a corner
Even the previous use of pentobarbital is controversial. The American Civil Liberties Union notes that pentobarbital is often used in the euthanasia of cats and dogs and that veterinarians have stricter guidelines in its use than state executioners face when injecting death row criminals.
Last week Oklahoma used pentobarbital to execute Michael Lee Wilson, who was convicted of robbing and murdering a convenience store co-worker. “I feel my whole body burning,” Mr. Wilson uttered before dying.
Pentobarbital was used by some states after they ran out of sodium thiopental, usually the first drug administered in the traditional three-step lethal injection protocol.
Prof. Denno said state officials have been backed into a corner.
In the past five years in the U.S., there have been more changes in lethal injection protocols than there have been in the last three decades, Prof. Denno concluded after analyzing over 300 recent cases.
“We’re stuck in a cycle of experimentation. Nobody knows what these drugs are about and what they’re really doing.”
At the same time, she noted that the process has become increasing secretive.
Under U.S. jurisprudence, death row inmates don’t have the right to a totally pain-free execution but they have a constitutional protection from being at risk from cruel and unusual punishment.
While inmates’ lawyers have tried to buttress their arguments, state officials are refusing to disclose their execution protocols or the source of their drugs.
Several states, such as Texas, Missouri and Oklahoma have resorted to getting their lethal chemicals from compound pharmacies, where the drugs are custom-mixed in small batches.
Traditionally minor shops for patients with unusual needs, compound pharmacies have grown into major “grey-market” businesses, Prof. Denno said.
“They act like large-scale pharmaceutical companies while hiding behind small-scale pharmacy licenses,” she said.
In Georgia, meanwhile, a legal clinic is alleging that a local physician, Carlo Musso, has been illegally importing sodium thiopental and reselling for use in executions in Kentucky and Tennessee. The complaint from the Atlanta-based Southern Center for Human Rights is now being investigated by the Georgia Attorney General’s office.
There are also concerns that some states are now stockpiling drugs for lethal injections at the expense of medical patients. The British human-rights group Reprieve has noted that the American Society of Health-System Pharmacists recently issued bulletins warning of a shortage of midazolam and hydromorphone.
Midazolam is increasingly used in medical practices to replace barbiturates because it is safer, which also means that it is harder to use to execute someone, according to Joel Zivot, an assistant professor of anesthesiology at Emory University.
In a commentary article in USA Today last month, Dr. Zivot criticized his home state’s use of midazolam for lethal injections. “How Florida granted itself expertise in the use of midazolam, now repurposed as a chemical used to kill, is known only to Florida,” he wrote.
He added that “from an ethical perspective, I cannot make the case that a medicine in short supply should preferentially be used to kill rather than to heal.”
More executions and the firing squad
The uncertainty about the lethal injection system has prompted a lawmaker in Wyoming State, Senator Bruce Burns, to suggest that firing squads be reinstated.
Wyoming law currently calls for using a gas chamber if lethal injection is unavailable. Mr. Burns told AP that building a gas chamber would be too costly.
“One of the reasons I chose firing squad as opposed to any other form of execution is because frankly it’s one of the cheapest for the state,” he said.
Elsewhere, more controversial executions are scheduled.
In Texas, a Mexican national, Edgar Tamayo Arias, is to be executed on Wednesday for murdering an officer with the Houston Police Department.
His lawyers say Mr. Tamayo is mentally retarded and has longstanding brain damage from a traumatic injury during his adolescence.
Since 1999, there has been a decrease in executions across the U.S. but some parts of the country remain determined in carrying out capital punishment, Prof. Denno said.
“Until death penalty states are willing to focus more on solutions than secrecy,” she predicted, “lethal injection as a method of execution will remain mired in an endless cycle of difficulty and disorder.”