New Method of Lethal Injection Facing an Uphill Battle

January 30, 2014

Two weeks ago, Ohio executed Dennis McGuire using an untested drug combination. The state switched to the combination of midazolam, a sedative, and hydromorphine, a painkiller, after manufacturers of the previous drug, pentobarbital, refused to sell it for executions. The combination was originally expected to be used in the execution of Ronald Phillips in November 2013, but his execution was delayed to study the feasibility of allowing him to donate his organs.
McGuire’s execution lasted the longest since Ohio resumed capital punishment 15 years ago—26 minutes. Most of the executions in the state using the previous three-drug cocktail, which included pentobarbital, lasted less than 10 minutes. According to a reporter who witnessed the execution, “McGuire struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing.” McGuire’s attorneys argued before the execution that he would suffer “air hunger” as a result of the new execution method.
It is currently not known whether McGuire’s actions were caused by the execution method or something else. Prison guards have said that McGuire told them his public defender told him to make a show during his execution that would possibly lead to the abolition of the death penalty, however, no one from the public defender’s office witnessed the execution. The guards’ accounts also indicated that McGuire refused to put on a show and during his execution. Furthermore, when McGuire was making the sounds, he appeared to be unconscious. McGuire’s family filed a federal lawsuit against the drug maker, Hospira Inc., alleging that it illegally allowed the drugs to be used for an execution. Ohio’s governor, who supports the death penalty, has not imposed a moratorium on capital punishment, but the procedure is under review.

The challenge to this new method of lethal injection will continue in the courts for the near future.

McGuire’s execution is likely to prompt many states that use lethal injection to join the growing number of states reverting back to older forms of capital punishment. Proposed legislation in Missouri and Wyoming would allow the use of firing squads, while proposed legislation in Virginia would allow electrocution. Currently, 5 methods of execution are used. Lethal injection is the most preferred with 35 states, the federal government, and military authorize the option. Electrocution is authorized by 8 states, the gas chamber and hanging is authorized by 3 states, and the firing squad is authorized in 2 states.
Despite this trend, at least one state, Louisiana, has switched to the method used in Ohio. Christopher Sepulvado is expected to be executed on February 5th, but is seeking to have his execution postponed. Sepulvado’s attorney argued that there is a question whether this method violates Sepulvado’s constitutional right against cruel and unusual punishment in light of McGuire’s execution.
The challenge to this new method of lethal injection will continue in the courts for the near future. There are at least three current challenges to this new method—the McGuire family’s lawsuit and Sepulvado’s and Gregory Lott’s, an Ohio man, appeals to their death sentences. It is possible that the Supreme Court will hear a challenge to method despite denying certiorari to McGuire’s appeal.