Ohio Federal Judge Gregory Frost ruled Monday that the execution of Dennis McGuire should go ahead, despite the new and untested experimental method of execution. Frost stated that “there is absolutely no question that Ohio’s current protocol presents an experiment in lethal injection processes.” However, McGuire’s defense attorneys could not demonstrate that he faced a “substantial risk” of “severe pain,” there were no grounds to halt the execution.
The new combination of drugs that Ohio intends to use is a mixture of the sedative midozolam and painkiller hydropmorphone, which are both widely used medically. Midozolam is often given to patients in preparation for sedation, and is used to prevent seizures and insomnia. Hydropmorphone is a potent analgesic derived from morphine, which is more easily administered via a drip than morphine itself.
McGuire’s lawyers argued that there is a strong possibility that it will take five minutes for him to die as he slowly struggles to breathe, a phenomenon known as “air hunger.” The judge dismissed this evidence, saying, “Ohio is free to innovate and to evolve its procedures for administering capital punishment.”
For any analytic result to be accepted by the scientific community, it must be demonstrable, repeatable and measurable. As this is the first time this method has been used, it cannot be any of those things at the time of the execution, and is outside of medical practice, as no doctor will take part in the administration of the drugs, only in the confirmation of death. The judge acknowledges the experimentation in the new method: “To pretend otherwise, or that either of the experts or this court truly knows what the outcome of the experiment will be, would be disingenuous.” However, the judge did allow the experimental execution to go ahead.
Ohio turned to this new method of execution after the manufacturer of pentobarbital, the previous barbiturate of choice in executions, refused to supply it for executions as part of a three-drug cocktail, which is widely criticized due to the potential for the maladministration of the third drug, potassium chloride. A recent execution in Oklahoma had the condemned man, Michael Lee Wilson, complaining that “I feel my whole body burning,” an indication that the potassium chloride may indeed have been incorrectly administered.
Dennis McGuire was convicted of the 1989 rape and murder of Joy Stewart, who was found by two hitchhikers after being stabbed twice in the neck. McGuire had originally attempted to implicate his own brother, and supplied detectives with evidence that only someone present at the crime could have known. He even showed detectives where the knife used in Stewart’s murder was hidden. But the DNA testing of blood and semen discovered at the murder scene only implicated McGuire, and the vehicle he claimed his brother had used had been sold by their mother a year earlier.
Judge Frost has heard many of the execution appeals made in Ohio in the last 10 years. Although McGuire’s method of execution is a new one for the judge, the execution experiment in Ohio will go ahead.
By Andrew Willig