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January 17, 2014

Unclear future for executions after Ohio’s longest

COLUMBUS, Ohio — The long and fitful execution of an Ohio inmate with an untested combination of chemicals brought cries of cruel and unusual punishment Friday and could further narrow the options for other states that are casting about for new lethal injection drugs.

A gasping, snorting Dennis McGuire took 26 minutes to die after the chemicals began flowing Thursday — the longest execution of the 53 carried out in Ohio since capital punishment resumed 15 years ago, according to an Associated Press analysis.

McGuire’s adult children complained it amounted to torture, with the convicted killer’s son, also named Dennis, saying: “Nobody deserves to go through that.”

Whether McGuire felt any pain was unclear. But Ohio’s experience could influence the decisions made in the 31 other lethal-injection states, many of which have been forced in the past few years to rethink the drugs they use.

States are in a bind for two main reasons: European companies have cut off supplies of certain execution drugs because of opposition to capital punishment in Europe. And states can’t simply switch to other chemicals without triggering legal challenges from defense attorneys.

“There’s only so many times you can say we’re going to try a new method, or try something different, where at this point it’s just going to invite a lot of skepticism,” said Fordham University law professor and lethal injection expert Deborah Denno.

She added: “There’s a dead-end we’ve never seen before with lethal injection.”

In light of what happened in Ohio, “states will now have more of a burden to show that they are using a well-thought-out best practice,” said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.

Ohio’s prison system is reviewing McGuire’s execution and declined to comment on the amount of time it took him to die from the two-drug combination, which had never been used before in a U.S. execution. McGuire, 53, was given both a sedative and a painkiller.

Most Ohio inmates executed since 1999 took 15 minutes or less to die, records show. In years when Ohio used a three-drug combination, many inmates died in less than 10 minutes, according to the records.

McGuire, who was sentenced to die for raping and stabbing to death a pregnant newlywed in 1989, appeared unconscious but gasped repeatedly as he lay on a gurney, his stomach rising and falling and his mouth opening and shutting.

States have been hit with a series of setbacks as they attempt to refine lethal injection, with one problem cropping up as soon as another appears solved.

To end constitutional challenges over the possibility of an inmate suffering undue pain from the widely used three-drug method, states beginning with Ohio switched to single doses of a powerful sedative, sodium thiopental. Even opponents agreed that wouldn’t cause pain.

Then sodium thiopental was placed off limits when Illinois-based manufacturer Hospira said it couldn’t promise authorities in Italy, where the drug was to be produced, that it wouldn’t be used in executions.

The next choice, pentobarbital, experienced a similar fate when its Danish maker also prohibited its use in executions, and a U.S. company that inherited the drug agreed to continue the restriction.

Missouri at one point proposed using propofol, the powerful operating room anesthetic infamous for its role in Michael Jackson’s overdose death.

But Missouri’s governor backed off for fear the European Union, which opposes the death penalty, would cut off exports to the U.S. and cause a nationwide shortage of propofol.

Companies in India and Israel put similar prohibitions on their drugs.

What happened in Ohio “was precipitated in a large degree by our European allies who made sure that some of the drugs that Ohio wanted to use weren’t available,” Dieter said. “They put a line in the sand that this is not where they want their companies to be selling for executions. So this brings up sort of an international dimension to this.”

As a result of all this, states will be under a lot of pressure to find new sources of pentobarbital, Dieter said.

One of those sources could be compounding pharmacies, which turn out custom-made batches of drugs.

But concerns about compounding pharmacies arose in 2012 after contaminated pain injections from a Massachusetts facility caused a meningitis outbreak that killed 64 people.

There are a number of painkillers, sedatives and paralyzing agents that can kill if administered in high doses. But switching to one of those could involve long, drawn-out bureaucratic or legislative delays in some states.

And any switch is all but certain to bring legal challenges over the drug’s effectiveness and the risk of pain in violation of the Constitution’s ban on cruel and unusual punishment.

Jon Paul Rion, an attorney for McGuire’s children, called his execution unquestionably cruel.

It’s almost certain lawyers will use McGuire’s execution to challenge Ohio’s plans to put a condemned Cleveland-area killer to death in March.

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