Fordham Law


After a Prolonged Execution in Ohio, Questions Over ‘Cruel and Unusual’

Deborah Denno in The New York Times, January 17, 2014

Media Source

As the lethal drugs flowed into his veins in the Ohio death chamber, Dennis B. McGuire at first “went unconscious” and his body was still, his daughter, Amber McGuire, said Friday.

But a few minutes later, she said, she was horrified to see her father struggling, his stomach heaving, a fist clenching.

“He started making all these horrible, horrible noises, and at that point, that’s when I covered my eyes and my ears,” said Ms. McGuire, who watched the execution on Thursday at the Southern Ohio Correctional Facility, near Lucasville. “He was suffering.”

Mr. McGuire’s execution, conducted with a new and untested combination of drugs, took about 25 minutes from the time the drugs were started to the time death was declared. The process, several witnesses said, was accompanied by movement and gasping, snorting and choking sounds.

It has not been established whether Mr. McGuire was conscious of pain or whether the drugs that were used were responsible for his prolonged death. But at a time when the drugs once routinely used in executions are in short supply and states are scrambling to find new formulas, the execution is stirring intense debate about the obligations of the state toward those it kills.

Ms. McGuire and her brother, also named Dennis McGuire, said Friday that they plan to file a federal lawsuit next week alleging that the execution violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

“We’re mainly just hoping that no other family has to go through what we went through yesterday,” Ms. McGuire said.

Allen Bohnert, the lawyer who represented Mr. McGuire, called the execution “a failed, agonizing experiment by the State of Ohio.”

But the family of Joy Stewart, the woman Mr. McGuire raped and murdered in 1989, said in a statement that whatever Mr. McGuire’s suffering, it paled in comparison with what Ms. Stewart went through at the hands of her killer. “He is being treated far more humanely than he treated her,” the statement said.

Three decades ago, lethal injection was pioneered as a more humane method of execution than electrocution or gas. But in recent years, European manufacturers of previously used drugs like pentobarbital and sodium thiopental, in response to pressure from groups opposed to the death penalty, have blocked their sale for use in executions.

Ohio, which had run out of its supply of pentobarbital, used a combination of midazolam, an anti-anxiety drug in the same family as Valium, and hydromorphone, a powerful narcotic derived from morphine. A court gave its approval to the combination, overruling lawyers for Mr. McGuire who had argued that the drugs could cause “air hunger,” a struggle for breath that, the lawyers said, could result in “agony and terror.”

But in persuading the court to allow the use of the drugs, Thomas Madden, an Ohio assistant attorney general, argued that although there are constitutional protections, “you’re not entitled to a pain-free execution.”

Death penalty opponents said that the shortage of drugs has led to a chaotic national picture, with individual states trying out different drug formulas, sometimes with disturbing results. Mr. McGuire’s execution was not the first in Ohio to inspire controversy: In 2009, the execution of Romell Broom was halted after executioners struggled for two hours to get an intravenous line to deliver the drugs. His lawyers argued that a second execution attempt would constitute cruel and unusual punishment. Mr. Broom is still on death row.

Deborah Denno, a law professor at Fordham University and an expert on lethal injections, said that a Supreme Court ruling that upheld Kentucky’s use of a three-drug cocktail for lethal injections in 2008 was based in part on the uniformity of drug combinations across the states.

But she said, as the drugs have become less available, “That’s no longer the case.” She added, “This is a very different world in 2014 than it was in 2008.”

In Wyoming, the shortage of lethal injection drugs has led State Senator Bruce Burns, Republican of Sheridan County, to propose offering a firing squad as an alternative method of execution. Currently, the gas chamber is the only alternative available in Wyoming, but the state does not have one. Mr. Burns said that given the infrequency of executions, a gas chamber is too costly to maintain. In Missouri, State Representative Rick Brattin introduced a bill on Thursday to add firing squads as an option. Utah is phasing out its firing squad option.

Debates about the relative humaneness of different execution methods have persisted as long as arguments about the death penalty itself. In 1890, electrocution was substituted for hanging in the belief that it was less painful, but George Westinghouse and Thomas Edison both fought to keep their electrical currents out of the death chamber (Mr. Westinghouse lost). Lawyers for William Kemmler, the first person to die in the electric chair, argued that the method constituted cruel and unusual punishment.

Jon Paul Rion, a lawyer representing Ms. McGuire and her brother in the lawsuit, said that the children were following their father’s wishes in bringing suit.

“Before Dennis was executed he knew that this could be an issue given what the defense experts had articulated to the court, that exactly what happened in this case could happen,” Mr. Rion said. “Dennis made his son promise that if in fact the execution was as painful and disturbing as the experts predicted, he would make sure” that others would not have to face a similar ordeal.

Douglas A. Berman, a law professor at Ohio State University, said that if the McGuires did file suit, they would have to prove “by a preponderance of the evidence that he suffered unnecessary pain.”

That might be difficult, he said, because Mr. McGuire is in no position to testify and the definition of “unnecessary” is uncertain, “given that state officials were trying their darnedest to avoid having him suffer unnecessary pain.”

“By my lights, this is a very hard lawsuit to prevail,” he added. “But who knows?”