Prolonged execution renews debate over death by lethal injectionDeborah Denno in The Los Angeles Times, January 17, 2014
An Ohio inmate's drawn-out execution this week led to an outcry about the increased use of new lethal injection drugs by the country's 32 death penalty states, a practice that experts predict will lead to more problems.
Dennis McGuire took more than 15 minutes to die Thursday, appearing to gasp and snort, according to witnesses. His lethal injection was a combination of two drugs never tried before in a U.S. execution, according to experts at the Death Penalty Information Center in Washington, D.C.
McGuire, 53, was sentenced to death for the 1989 rape and stabbing death of Joy Stewart, 22, who was seven months pregnant.
McGuire's two children, who witnessed the execution, announced plans Friday to file a federal lawsuit against the state alleging that the execution violated McGuire's constitutional protection against cruel and unusual punishment. They are seeking a moratorium on executions until officials devise a more humane method.
"I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating. The agony and terror of watching my father suffocate to death lasted more than 19 minutes. It was the most awful moment in my life," said the inmate's son, who is also named Dennis McGuire.
A few minutes before McGuire was put to death, Ohio's prison director, Gary Mohr, said he believed the state's planning would produce "a humane, dignified execution" consistent with the law. In pressing for the execution, state Assistant Atty. Gen. Thomas Madden had argued that condemned prisoners were "not entitled to a pain-free execution."
U.S. District Judge Gregory Frost sided with the state, but at the request of McGuire's lawyers, ordered officials to photograph and preserve drug vials, packaging and syringes.
Ohio and other states have been forced in recent years to use a new mix of drugs and reconsider lethal injection practices after manufacturers, under pressure from death penalty opponents, limited the distribution of drugs previously used in executions, prompting shortages.
In September, Ohio officials announced that they had run out of the lethal injection drug pentobarbital and would switch to a combination of midazolam, a sedative, and hydromorphone, a painkiller similar to morphine.
About 20 states had switched to the lethal injection drug pentobarbital after a U.S. supplier halted distribution of sodium thiopental in 2011 amid international protests against capital punishment.
Eight states started using a single lethal dose of pentobarbital in executions, and officials in five more states said they planned to do so, according to Richard Dieter, director of the Death Penalty Information Center.
Then in 2012, the manufacturer of pentobarbital announced that it was unsafe for lethal injections and restricted its sale.
Now states, including Ohio, are looking for alternatives.
"We have seen fewer and fewer executions every year, in large part because of these problems," said Douglas Berman, a law professor at Ohio State University.
Difficulties arising from new drug protocols not only raise the question of whether inmates' rights are being violated, but whether executioners are making mistakes, said Deborah Denno, a professor at Fordham Law School who has researched the death penalty for two decades.
There have been long-standing problems with administering lethal injections, she said, citing instances in which corrections officials couldn't find an inmate's vein, or let a syringe pop out of an inmate's arm.
"I'm certainly not sympathetic to these people. But that's irrelevant," Denno said of condemned prisoners. "The department of corrections in Ohio, they were incompetent. They did the wrong thing. It was not supposed to turn out that way — it was a procedure that was supposed to go smoothly."
California suspended executions eight years ago after an inmate challenged lethal injection as being cruel and unusual punishment. Efforts to adjust the drug combination have so far failed to satisfy judges, who most recently questioned why the state did not plan to use a single-drug injection.
Some states searching for new supplies of lethal injection drugs have turned to
compounding pharmacies, which make drugs without federal scrutiny. After the Ohio controversy, Dieter said, this will probably become more common. Texas, which has executed 508 prisoners since lethal injection started in 1982, more than any other state, began using a compounding pharmacy last year. It previously switched to pentobarbital due to drug shortages.
In the midst of these changes, trouble has surfaced at several executions.
Last week, Michael Lee Wilson complained of pain during his execution in Oklahoma using a three-drug combination that included pentobarbital. State officials declined to say whether the drugs came from a compounding pharmacy.
"I feel my whole body burning," Wilson said, according to information released by corrections officials.
Wilson, 38, was sentenced to death for fatally beating a convenience store co-worker in 1995.
Oklahoma officials do not plan to change the method of lethal injection, department spokesman Jerry Massie said, noting that a reporter who witnessed the execution said that Wilson "showed no signs of distress."
Amid the shortages and outcry over lethal injection, some officials are calling on states to abandon the practice.
The Arkansas attorney general suggested using the electric chair. A lawmaker in Wyoming wants to revive firing squads, and another in Missouri called for construction of a gas chamber.
"Maybe states will give up and say we'll try firing squads and hanging again. But then there's a question about whether courts will allow that," said Berman.