Updated: Jan. 16, 12:55 p.m.
Ohio executed condemned inmate Dennis McGuire on Thursday with a controversial two-drug method of lethal injection never used before in the U.S. It’s unlikely to be the last.
According to the Associated Press, McGuire appeared to gasp several times and made snorting or snoring sounds during the execution. The AP reports it took McGuire 15 minutes to die, one of the longest executions for the state in over a decade.
As states struggle to replace sodium thiopental, a drug widely used in lethal injections for years, many are turning to untried combinations. The first four executions scheduled this year, each in four different states, are utilizing a different combination of lethal-injection drugs that are largely untested.
“In the old three-drug combination, each drug was being used for what it was designed for,” says Dr. Jonathan Groner, a professor of clinical surgery at the Ohio State University who studies lethal injections. “But Ohio is taking drugs that are normally used for things like a colonoscopy, and they’re giving massive overdoses to kill people. They’re using them for their toxic side effects.”
Lawyers for McGuire, who was sentenced to death for the 1989 rape and murder of Joy Stewart, argued that the method of lethal injection planned by the state was unconstitutional because of the risk that McGuire would be conscious as he suffocates to death. Allen Bohnert, one of McGuire’s attorneys, said prior to his execution that he believed McGuire would “ be aware of that terror and sensation of suffocating for around five minutes, from the time the drugs start to flow.” McGuire, who reported sleep-apnea-like complications, may also have been vulnerable to problems more than others on death row. Officials disagreed. Last week, a federal judge denied McGuire’s plea for a stay of execution, and Ohio Governor John Kasich denied a clemency request.
For years, most states have used a standard three-drug combination in lethal injections: a barbiturate or anesthetic (either pentobarbital or sodium thiopental), a paralytic agent (pancuronium bromide) and a drug to stop the heart (potassium chloride).
But those drugs are becoming harder for states to obtain. In 2011, Hospira announced it would stop manufacturing sodium thiopental, which was used by almost all of the 35 states that had the death penalty. (There are currently 32 states that have capital punishment.) As the supply dried up, states looked for alternatives, notably in Europe. But those pharmaceutical companies soon refused to sell drugs to U.S. states that planned to use them for lethal injections.
The latest strategy for states scrambling to find usable lethal-injection drugs is to rely on largely unregulated compounding pharmacies. In 2012, a meningitis outbreak in Massachusetts that killed 64 people and sickened 750 was linked to the New England Compounding Center. That incident led Congress to enact a law in 2013 that allowed larger compounding pharmacies to voluntarily register with the Food and Drug Administration. But many smaller pharmacies are likely to remain under the federal radar.
These supply difficulties have led states to tinker with their lethal-injection methods. In Florida, a three-drug combination using midazolam hydrochloride — a sedative used as the first drug — was administered on Jan. 7 to execute Askari Muhammad. In Oklahoma, a three-drug combo utilizing pentobarbital was used to kill Michael Wilson. But in Ohio, the state administered a two-drug method never used before — midazolam and hydromorphone — that was initially designed as a backup plan to its previously used one-drug protocol: pentobarbital. It’s likely that the state can no longer obtain that drug, according to Richard Dieter of the Death Penalty Information Center.
Dr. Groner says he’s unaware of any testing on midazolam, a Valium-like sedative, and hydromorphone, which was used to stop McGuire’s breathing. There’s also the possibility that complications arose from the drugs’ likely manufacture at a compounding pharmacy. Ohio announced last year it would begin obtaining drugs from those pharmacies.
“If it’s 75% pure or mislabeled or partially expired, it’s the anesthesiologist’s worst dream,” Dieter says. “And it’s being applied not by anesthesiologists but by prison guards. Experiment is kind of an electrifying word, but I think that’s what this is.”
So far, judges have been unsympathetic to the claims that the current, untested era of lethal injections violates the Eighth Amendment barring cruel and unusual punishment. Bohnert, McGuire’s lawyer, says he thinks it’s going to take an execution to go bad in a very public, visible way for anything to change.
“From what I have been told, at least as to using the two-drug method here in Ohio, it’s not a question of if, it’s just simply a question of which inmate,” Bohnert says.
This post has been updated to reflect McGuire’s execution Thursday morning.