Children of executed inmate plan to sue over use of never-tried drug

Family of Dennis McGuire, the first put to death by two-drug combination, calls act ‘torture’

Prison authorities are increasingly drawing a curtain over their scramble for execution drugs.
AP Photo/Ohio Dept. of Rehabilitation and Corrections

A condemned Ohio inmate appeared to gasp several times and took more than 15 minutes to die Thursday as he was executed with a combination of drugs never before tried in the U.S.

Dennis McGuire's attorney, federal public defender Allen Bohnert, called his client's death "a failed, agonizing experiment by the state of Ohio."

McGuire's son, also named Dennis, and daughter, Amber, said Friday that their father's unusually slow execution amounted to torture, and announced plans to sue over his death.

McGuire made loud snorting noises during one of the longest executions since Ohio resumed capital punishment in 1999.

His attorneys attempted to halt the execution last week, arguing that the untried method put him at substantial risk of "agony and terror" while he strainedto catch his breath in a medical phenomenon known as air hunger.

Amber McGuire said she was so horrified that she covered her ears so she wouldn't hear the sounds her father made, describing it as “torture.”

“I don’t feel like anybody deserves that — families, or my dad, anybody on death row — nobody deserves to go through that,” said her brother.

Ohio prisons spokeswoman JoEllen Smith had no comment on how the execution went but said a review will be conducted as usual.

David Waisel, a professor of anesthesia at Harvard University, told Al Jazeera that on the basis of the execution reports, he thinks McGuire’s snorting sounds indicate that the inmate wasn’t completely asleep while the drugs were taking effect.

Waisel described the feeling of air hunger as “the incredible need to take a breath and being unable to. You’re starving to breathe.” He compared it to playing sports and having the air knocked out of you. “It’s an awful feeling.”

The state used intravenous doses of two drugs, the sedative midazolam and the painkiller hydromorphone, to put McGuire to death for the 1989 rape and fatal stabbing of a pregnant woman, Joy Stewart. The method was adopted after supplies of a previously used execution drug ran out because the manufacturer put it off limits for capital punishment. 

The new execution drug cocktail — which uses two chemicals in short supply among hospitals in the U.S., according to the American Society of Health-System Pharmacists — was chosen as prison authorities scramble to find replacement lethal-injection ingredients. Pharmaceutical firms in Europe and the United States have increasingly objected to their products’ use in the death chamber, leading to new mixes, often purchased from semiregulated compounding pharmacies.

Maya Foe of the legal-rights charity Reprieve described the execution as “shocking,” adding that it was tantamount to “human experimentation at its most cruel and unusual.”

“Ohio was warned by leading experts that experimenting on people in this way risked causing them serious suffering,” she said, “and the evidence suggests that this has been borne out. How many more botched executions do we need to see before executioners stop using humans as guinea pigs?”

Executions with the former method were typically much shorter and did not lead to the types of sounds McGuire made.

A few minutes before McGuire was put to death, the state prison director, Gary Mohr, said he was confident the execution would be carried out in a humane and dignified manner. As is common practice, prison officials did not immediately comment after the execution except to release the time of death.

Strapped to a gurney in the execution chamber, McGuire thanked Stewart’s family for their “kind words” in a letter that he apparently received from them.

“I’m going to heaven. I’ll see you there when you come,” he said through a microphone held by the warden.

As his children sobbed a few feet away in a witness room, McGuire opened and shut his left hand as if waving to his daughter, son and daughter-in-law.

More than a minute later he raised his head, looked in the direction of his family and said, “I love you, I love you” — his words audible even though the microphone had been removed.

McGuire was still for almost five minutes, then emitted a loud snort, as if snoring, and continued to make that sound over the next several minutes. He also soundlessly opened and shut his mouth several times as his stomach rose and fell.

“Oh, my God,” Amber said as she observed her father’s final moments.

A coughing sound was Dennis McGuire’s last apparent movement, at 10:43 a.m. He was pronounced dead 10 minutes later.

Attorneys for the state called McGuire’s bid to halt his execution with the untried method an eleventh-hour appeal based on claims that should have been raised years ago because the process had been in place as a backup method.

And although the U.S. Constitution prohibits executions that constitute cruel and unusual punishment, that doesn’t mean procedures must be entirely comfortable, the state argued.

“You’re not entitled to a pain-free execution,” Assistant Attorney General Thomas Madden told federal Judge Gregory Frost.

Frost sided with the state but acknowledged that the new method was an experiment. At the request of McGuire’s lawyers, he ordered the state to photograph and then preserve the drugs’ packaging boxes and vials and the syringes used in the execution.

Bohnert, McGuire’s attorney, said the court’s concerns over the method were confirmed.

“And more importantly, the people of the state of Ohio should be appalled at what was done here today in their names,” said Bohnert, who did not witness the execution.

McGuire, 53, was executed for killing Stewart, a newlywed who was eight months pregnant at the time of her death, in western Ohio’s Preble County.

“We have forgiven him, but that does not negate the need for him to pay for his actions,” said a statement released by Carol Avery, Stewart’s sister, after McGuire’s death.

Stewart’s slaying went unsolved for 10 months until McGuire, jailed on an unrelated assault and hoping to improve his legal situation, told investigators he had information about the woman’s death on Feb. 12, 1989. His attempts to blame the crime on his brother-in-law quickly unraveled, and soon he was accused of being Stewart’s killer, according to prosecutors.

More than a decade later, DNA evidence confirmed McGuire’s guilt, and he acknowledged that he was responsible in a letter to Gov. John Kasich last month.

“One can scarcely conceive of a sequence of crimes more shocking to the conscience or to moral sensibilities than the senseless kidnapping and rape of a young, pregnant woman, followed by her murder,” Preble County prosecutors said in a filing with the state parole board last month.

His attorneys argued that McGuire was mentally, physically and sexually abused as a child and had impaired brain function that made him prone to act impulsively.

“Dennis was at risk from the moment he was born,” the lawyers told the parole board. “The lack of proper nutrition, chaotic home environment, abuse, lack of positive supervision and lack of positive role models all affected Dennis’ brain development.”

Documents obtained by The Associated Press show McGuire unsuccessfully sought a reprieve in recent weeks to try to become an organ donor. In November, Kasich granted a death-row inmate an eight-month reprieve to let the prison system study his request to donate a kidney to his sister and his heart to his mother.

Kasich said McGuire couldn’t identify a family member to receive his organs, as required under prison policy.

McGuire was calm and cooperative when he arrived at the death house in southern Ohio Wednesday morning. He requested a last meal of roast beef and fried chicken, typically served the afternoon before the execution.

Al Jazeera and The Associated Press

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