DAYTON, Ohio — Legal challenges and a struggle to find lethal drugs have triggered a raging debate in states like Ohio over the proper way to execute condemned killers. The unavailability of certain drugs has led to changes in many death penalty states and prompted talk of execution methods that haven’t been used for decades.
Bringing back firing squads, the electric chair and even gas chambers is being discussed in some parts of the country, while other states — most recently Maryland and Connecticut — are moving away from the death penalty.
In Ohio, a federal lawsuit filed after the prolonged execution of Dennis McGuire last month calls for an injunction against the state’s death penalty and challenges whether the drugs used to kill him can be used for executions.
Ohio’s protocol for administering the death penalty has changed three times in five years because pharmaceutical companies in the U.S. and Europe have refused to sell their drugs for executions.
The company that manufactured Ohio’s current supply of death penalty drugs has said it doesn’t want its product used for that purpose. Supplies of pentobarbital — which was used in 36 of 39 executions nationwide in 2013 — are also running low because its Danish manufacturer has announced it would not sell it for executions.
Support for the death penalty has dropped nationally, from a high of 80 percent in 1994 to 60 percent in an October Gallup poll. The McGuire execution, which took more than 25 minutes and resulted in a series of audible gasps for air, renewed calls by some to halt the practice.
McGuire’s attorneys said the execution — the first to use the two-drug combination of the sedative midazolam and the painkiller hydromorphone — was a “failed, agonizing experiment.”
Others call attention to the crime committed by the Preble County man, the 1989 rape and murder of 22-year-old Joy Stewart, who was 7 1/2 months pregnant at the time.
Based on medical reports, experts say Stewart’s death could have come seconds or minutes after her throat was cut. That came after an unknown period of time during which she was a brutally raped, choked and stabbed.
“The penalty should match the crime,” said state Rep. John Becker, R-Clermont County, who would support giving inmates the choice of the electric chair, lethal injection, or even hanging.
“If it was OK to hang people back then … in the 1700s when the Constitution was written, it’s OK today.”
Former state appeals court judge James Brogan, of Dayton, who is overseeing a review of capital punishment in Ohio — the legal process, not whether to abolish capital punishment — said the issue for the courts is “an evolving sense of decency.”
“What might have been decent in the 18th century when the Constitution was written may not be the decent way of doing it today,” he said, noting that executing children or the mentally ill was acceptable 200-plus years ago.
“If you can’t do it with drugs, how many people would be in favor of doing it?” he said. “The other (methods) don’t seem to be as humane.”
McGuire’s children have alleged in court that their father’s execution amounted to “cruel and unusual punishment” in violation of the U.S. Constitution.
According to state records, the three Ohio men executed in 2013 took 15 minutes or less to die after being injected with the anesthetic pentobarbital.
Montgomery County Coroner’s Office Chief Deputy Dr. Lee Leahman said McGuire’s reactions were very similar to the drug overdoses his staff sees routinely. Often, the last thing witnesses report about a drug overdose is the person snoring.
“I don’t think he’s aware of any of it,” Leahman said.
Florida has used midazolam in its three most recent executions and Louisiana announced two weeks ago that it is switching to the same two-drug combination as Ohio.
Mike Brickner, spokesman for the ACLU of Ohio, says changing execution drugs presents unknowns, as well as legal challenges. The American Civil Liberties Union sent a letter to Gov. John Kasich three days after McGuire’s death asking for a moratorium on executions.
“The Wild West is a very apt description,” Brickner said of the state of executions. “We adopted lethal injections as a nation because we felt that it was the most palatable way to put somebody to death. Now the lack of drugs has thrown a huge monkey wrench into this.
“We’re inventing new methods that are unproven, that are tantamount to human experimentation.”
The only person who knows for sure what McGuire experienced on the death table on Jan. 16 is McGuire himself.
“It’s accurate to complain, on the defense side, that we’re doing human experimentation, because every time we try a new execution protocol we are experimenting,” said Doug Berman, a law professor at Ohio State University. “I don’t know if the experiment worked or didn’t work.
“We do know the guy ended up dead, so if that’s the main goal, and I think it is, it worked. But we also want to eliminate any unnecessary pain, and that’s uncertain.”
“Unfortunately, with executions it goes to the old adage ‘dead men tell no tales,’ ” Brickner said. “It’s impossible for us to know if an execution is pain-free. But at the very least, we should be using drugs that have a track record of being successfully used.”
Ohio’s death penalty has been evolving for more than a century. The electric chair replaced public hangings as a more humane and modern execution method in 1897.
The last person electrocuted in Ohio was Donald Reinbolt, in 1963. An account of that execution is contained in a book about the death penalty by Associated Press writer Andrew Welsh-Huggins:
“Warden Ernest Maxwell ordered two jolts of electricity; Reinbolt lurched forward after the first, straining against the straps, then slumped back, limp. After a second jolt, a smell of singed hair filled the room, and a reporter witnessing the execution fainted.”
Ohio executed 315 people using the electric chair from 1897 to 1963. The state did not execute anyone from 1963 to 1999. Since 1999, it has executed 53 people. McGuire’s death took the longest, according to an AP analysis.
Thirty-two states have death penalty laws on the books, but only 14 have executed anyone in the past three years.
Death penalty supporters point to reluctant judges as the biggest hurdle to carrying out the law.
“It has nothing to do with any of this stuff, it’s the judges in the states,” said Dudley Sharp, a death penalty expert and victims rights advocate based in Houston, Texas.
“If the judges will allow executions, they’ll have them. If they won’t allow them, like in Pennsylvania, they won’t have them. You don’t have them in California anymore because the judges won’t let you.”
Ohio is an outlier in the Midwest when it comes to executions. Indiana last executed someone in 2009. In Kentucky, an injunction in Franklin Circuit Court put executions on hold in 2010. Michigan abolished the death penalty in 1847, West Virginia in 1965.
“I do think Ohio has been not just innovative, but effectively and courageously innovative, in an effort to keep the law in place,” OSU’s Berman said. “I’m actually kind of sympathetic to the Ohio Corrections officials because I really do think they’re trying their best to run a difficult government program.”
Ohio has 12 executions scheduled over the next two years, including a March 19 date for Gregory Lott, a Cuyahoga County man who was convicted of breaking into an East Cleveland home, dousing the 82-year-old homeowner with lamp oil and setting him ablaze on July 12, 1988. The man died in a hospital 11 days later.
Lott has filed a lawsuit to halt the execution, citing what happened to McGuire. Lott’s suit notes that McGuire was 53, 5-foot-10 and 253 pounds, while Lott is 52, 5-foot-9 and 240 pounds and that Lott would endure a similar “death by suffocation.”
Ohio’s protocol allows executioners to prepare two vials of the combined two-drug cocktail and administer the second if “a sufficient time for death to occur has passed but the prisoner has not died.” The execution team prepared only one dose for McGuire, state records show.
In response to a legal claim by another death row inmate, the Ohio attorney general’s office on Jan. 27 filed in court that the drugs administered per the policy “will cause an individual to lose consciousness rapidly and not experience any pain or discomfort.”
Ohio procured its most recent batch of midazolam and hydromorphone in November, according to state officials. The drugs were ordered from the pharmaceutical distributor McKesson Corporation by the state’s central pharmacy, then shipped to the Southern Ohio Correctional Facility in Lucasville, home of the “Death House.”
The manufacturer of the drugs is Illinois-based Hospira, which in spring 2013 announced it would not sell drugs to penitentiaries for use in lethal injections.
“Hospira has been very clear that we don’t support the use of our company’s product in lethal injection,” said Hospira spokesman Dan Rosenberg. “However, despite our efforts, it’s important to note that due to the complex supply chain and the gray market in the United States, Hospira cannot guarantee that a U.S. prison could not secure restricted products through other channels not under Hospira’s control.”
The lawsuit by McGuire’s family argues that Hospira knew why Ohio was buying the drugs and that there was no clinical testing or approval by the Food and Drug Administration to use midazolam or hydromorphone for executions.
“We are asking that Hospira Inc. be held liable for allowing their drugs to be put in the stream of commerce in a way that was inconsistent with the permission granted by the FDA,” the suit says.
State and federal records show some of the state’s supply of midazolam and hydromorphone is set to expire in April and May of this year.
For years, sodium thiopental was the preferred execution drug, but that anesthetic was phased out in 2011 when its manufacturer made it unavailable.
Most states — including Ohio — now list hard-to-find pentobarbital, a barbiturate, as their first choice. But even that drug has had issues. Last month an Oklahoma man reportedly said “I feel my whole body burning” during his execution from a lethal injection of pentobartital.
Some states, including Texas, purchase drugs from compounding pharmacies, which make drugs to order and don’t operate under stringent federal regulations.
“They don’t have any kind of accountability or oversight from the FDA so there’s no one to make sure the medications they are creating are done so safely and effectively,” the ACLU’s Brickner said.
Another obstacle that may prevent states from carrying out executions is the reluctance of the medical profession to get involved.
“Ohio’s been trying for quite some time to get more sophisticated medical professionals to help out with the execution process or redesign the protocol, and my understanding is they consistently run into barriers,” OSU’s Berman said. “The medical community has a strong interest in avoiding any suggestion that doctors are using their expertise in the process of state killing.”
In its Jan. 27 court filing, the attorney general’s office said no physician or medical doctor is part of the state’s anonymous execution team under its current policy.
Some states are discussing backup plans to carry out executions if they cannot secure lethal drugs. Virginia lawmakers last month passed a bill that would make electrocution its preferred method if drugs were not available. The nation’s only execution not involving lethal injection last year was in Virginia, where Robert Gleason volunteered to die by electrocution.
Eight states list electrocution as a method of execution. Hanging and lethal gas are legal in three states, and two — Utah and Oklahoma — list firing squads as options. Recently, politicians in Missouri and Wyoming advocated for firing squads.
Sharp, who said he was against the death penalty until he studied the topic in the late 1990s, says using nitrogen gas would be the best execution method. “I think nitrogen asphyxiation is the answer,” Sharp said. “There’s no pain, no suffocation, and you go to sleep. And no one can stop you from getting nitrogen.”
Despite calls for the return of centuries-old execution methods, Sharp said it is important to maintain the dignity of the practice.
“I don’t think people are going to want to go back to electrocution, firing squads or hanging,” Sharp said. “It cheapens what should be a very reflective process. It’s a very serious topic, and it’s all sad.”