Fordham Law


Dennis McGuire's execution raises question in debate over death penalty: Why is it so hard to put a person to death humanely?

Deborah Denno in The Cleveland Plain Dealer, January 26, 2014

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The drawn-out execution of Dennis McGuire did more than highlight the flaws of lethal injection in Ohio.

It raised a fundamental question in the heated debate of the death penalty: Why is it so hard for governments to put an inmate to death in a humane way?

In McGuire's case, some cite Ohio's rush to execute, underscored by its admission that it was experimenting with the combination of drugs used. Others say future executions will face similar problems, as the most potent drugs used in lethal injections are off the market.

"People ask, 'How did this happen?''' said Deborah Denno, a professor at the Fordham University School of Law who has studied lethal injection for 20 years. "Well, it's not just the drugs; it's a lot of variables, and the problems have gone on for quite a while. This is a prison inflicting a punishment, not a hospital treating a patient.''

It took 25 minutes to put McGuire, 53, to death Jan. 16 in a procedure that his family and lawyers called torture. Prior to the execution, a prison expert had estimated that it would take a fraction of that time.

McGuire's death has enraged some who say the problems of the execution have drowned out what McGuire did to his victim. He was convicted of raping and killing Joy Stewart, who was pregnant, in 1989 in Preble County. Her family released a statement that said McGuire was treated far more humanely at the time of his death than he treated Stewart.

On Monday, the ACLU of Ohio urged Gov. John Kasich to stop the state's use of the death penalty, saying the punishment "has reached a crossroads, and the nation and world are watching.''

"It is unfair to the families of murder victims, who have waited in a sort of limbo only to have executions turn into public spectacles and sideshows,'' the ACLU said in a letter to Kasich.

For McGuire, prison authorities used a combination of hydromorphone, a pain killer, and midazolam, a sedative. It marked the first time the drugs were ever used in combination in an execution.

"In theory, these drugs, or their first cousins, are used every day in operating rooms,'' said Dr. Howard Nearman, a professor of anesthesiology at Case Western Reserve University's School of Medicine and the former chairman of the anesthesiology department at University Hospitals Case Medical Center.

Ohio originally used a three-drug concoction of sodium thiopental, pancuronium bromide and potassium chloride in its first executions. But the state decided against the method after the bungled execution attempt of Romell Broom in September 2009.

Authorities could not find a vein to place the drugs in. And after two hours of trying, the execution was called off. Broom, 57, remains on death row for the rape and slaying of 14-year-old Tryna Middleton of East Cleveland in 1984.

Similar problems haunted the Ohio executions of killers Joseph Clark in 2006 and Chris Newton in 2007, though officials were eventually able to find the veins and execute the men after lengthy delays.

The three-drug dose also was the source of several lawsuits, claiming Ohio's procedures were cruel and unusual because inmates could feel pain while they were being sedated, paralyzed and killed by the drugs.

The state switched to using just one drug in the lethal injection process, sodium thiopental, after the Broom attempt in 2009, and pentobarbitol in 2011. In each instance, Ohio was the first state to try the drugs in executions, according to the Death Penalty Information Center.

The state, like so many others, has struggled in recent years because makers of those drugs, sodium thiopental and pentobarbitol, refused to provide them to states for executions.

The issue is compounded because doctors strongly have backed away from helping in executions, citing ethical and moral issues. The Associated Press reported last year that the Ohio Department of Rehabilitation and Correction has requested that doctors be protected from professional sanctions with the State Medical Board.

In Ohio, the executioners are volunteer prison employees with paramedic-type training, the wire service reported. Their names are not made public.

"We have no idea who these people are or their training," Denno said. A spokeswoman for the prison system said she would not comment on the lethal injection process or McGuire's death.

"What's increasingly clear is that lethal injection, in the way that it is presently constituted, cannot guarantee the absence of cruelty in the carrying out of an execution,'' said Dr. Joel Zivot, an assistant professor of anesthesiology and surgery at the Emory University School of Medicine and the medical director of the Cardiothoracic Intensive Care Unit at Emory University Hospital.

"Can lethal injection be improved? As a physician, I find that a hard question. Physicians aren't experts in executions. We're not trained in this. When we go to medical school, there are no courses on executions. I'm not a judge or a lawyer, but I do know what these compounds do and don't do. Any state that attempts to use these compounds will have trouble. They are not made to execute. They are made to treat.''

Exactly what happened during McGuire's execution remains unclear, as state authorities continue to investigate what took place.

Those who watched the procedure reported that he panted for air, arched his back and clenched his fists. A timeline of events, released by the prison system, indicates that the execution team placed the first syringe into McGuire at 10:27 a.m. Jan. 16. At 10:52 a.m., the report indicates McGuire had "no heart sounds, no lung sounds.''

Interviews and documents suggest that McGuire struggled throughout the procedure from something called air hunger, or the inability to satisfy the body and mind's urges to breathe.

The state was to give McGuire a massive dosage of hydromorphone intravenously, according to court records. The hydromorphone, in such a large dose, was to stop his breathing, the records show. The state also gave him midazolam, the sedative.

The prison system believed that it would take just minutes. McGuire's expert, Dr. David Waisel, disagreed and estimated that it would take longer -- for five minutes. He cited the relatively low dosage of midazolam the prison system gave for McGuire's weight of 253 pounds.

Waisel teaches anesthesiology at Harvard Medical School. He said in documents filed in U.S. District Court in Columbus before the execution that the drug combination would take effect slowly. He said McGuire would experience "the agony and horrifying sensation of unrelenting air hunger during the midazolam/hydromorphone execution.''

Ohio used Dr. Mark Dershwitz, an anesthesiologist at the University of Massachusetts Memorial Medical Center, as its expert witness. In documents, he said the huge dose of hydromorphone, administered with midazolam, would stop McGuire's breathing within a few minutes.

"He may, or may not, lose consciousness prior to stopping breathing,'' Dershwitz said. "However, the onset of unconsciousness is not necessary to prevent suffering at the point in time at which he stops breathing because he will experience no air hunger at that time or at any time before or afterward.''

In an order filed by U.S. District Judge Gregory Frost addressed the issue of McGuire's possible suffering: "It is worth noting at the outset that the Constitution does not demand a pain-free execution. What the Constitution does demand is avoidance of a demonstrated or substantial risk of severe pain.''

He said McGuire's attorneys failed to show that the use of the drugs would be cruel and unusual punishment and permitted the execution.

"The only fair evaluation of the evidence here leads to the conclusion that the degree of risk that Ohio's (combination of drugs) presents is acceptable within the contours of the law,'' Frost wrote.

Jon Paul Rion, the attorney for McGuire, said he plans to file a lawsuit against the state, claiming the execution was cruel and unusual punishment.

Attorney Dana Hansen represents the next inmate scheduled to die, Gregory Lott of Cleveland. Her office filed a federal lawsuit Thursday to stop his March 19 execution, based on what took place in McGuire's execution.

Lott, 52, was convicted in 1987 of killing 82-year-old John McGrath. His clemency hearing is Feb. 19.

In December, Zivot, the anesthesiologist from Emory University, wrote a column for Gannett newspapers on lethal injection. He said one of the drugs used in McGuire's execution, midazolam, also is in short supply.

"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,'' Zivot wrote. "What appears as humane is theater alone.''

He urged a moratorium on the use of all anesthetic drugs for lethal injection, adding that if a government "is inclined to execute, it might be the time again to take up hanging, the electric chair or the bullet.''