Unclear future for death penalty in Ohio

Ohio's latest experience with putting an inmate to death raises new question about the ability of states to carry out executions in constitutional fashion.

It took Dennis McGuire 26 minutes to die on Thursday after the chemicals — intravenous doses of the sedative midazolam and the painkiller hydromorphone — began flowing into his body. Initial reports said McGuire took more than 15 minutes to die. His death marked the longest execution of the 53 carried out in Ohio since capital punishment resumed 15 years ago.

McGuire, who was sentenced to die for raping and stabbing a pregnant newlywed to death in 1989, appeared unconscious but gasped repeatedly as he lay on a gurney, with his stomach rising and falling and his mouth opening and shutting.

Deborah Denno, a professor of law at Fordham University, said that a lethal injection is supposed to last about three or four minutes. 

"It's hard to know exactly what went wrong," Denno told Al Jazeera. "These drugs had never been used on a human being before, and experts had predicted that these very kinds of reactions could occur."

Whether McGuire, 53, felt any pain was unclear. His death — unconsciousness, followed by apparent obstructed breathing — followed the prediction of one state expert.

The question may center on states' tolerance for a constitutional method that is difficult to observe, said Doug Berman, an Ohio State University law professor and death penalty expert.

"How much will Ohio care, how much will the rest of the country care, that it seems that what we now have discovered is Ohio is using a method that gets the job done, but looks ugly," Berman said. "We don't know if it actually was ugly. We just know that it looked ugly."

Members of McGuire's family, who plan to file a lawsuit against the state, said the execution amounted to torture.  

"Nobody deserves to go through that," said McGuire's son, also named Dennis.

States are in a bind for two main reasons: European companies have cut off supplies of certain execution drugs because of opposition to the death penalty. And states can't simply switch to other chemicals without triggering legal challenges from defense attorneys.

In light of what happened in Ohio, "states will now have more of a burden to show that they are using a well-thought-out best practice," said Richard Dieter, executive director of the Death Penalty Information Center.

Ohio's prison system is reviewing the execution and declined to comment on the amount of time it took McGuire to die from the two-drug combination, which had never been used before in a U.S. execution.

"You can't test these drugs on humans unless they're being executed as you've just seen, and you can't test them on animals," Denno told Al Jazeera.

"It's hard to know what states are going to be using," said Denno. "They've used so many different kinds of drugs and so many different kinds of lethal injection procedures. I think they’re really up against the wall." 

Most Ohio death row inmates over the past 15 years took 15 minutes or less to die, records show. In years when Ohio used a three-drug combination, many inmates died in less than 10 minutes, according to the records.

To end constitutional challenges over the possibility of an inmate suffering undue pain from the widely used three-drug method, states beginning with Ohio switched to single doses of a powerful sedative, sodium thiopental. Even opponents agreed that wouldn't cause pain.

Then sodium thiopental was put off limits when Illinois-based manufacturer Hospira said it couldn't promise authorities in Italy, where the drug was to be produced, that it wouldn't be used in executions.

The next choice, pentobarbital, experienced a similar fate when its Danish maker also prohibited its use in executions, and a U.S. company that inherited the drug agreed to continue the restriction.

Missouri at one point proposed using propofol, the powerful operating room anesthetic infamous for its role in Michael Jackson's overdose death. But Missouri's governor backed off for fear the European Union, which opposes the death penalty, would cut off exports to the U.S. and cause a nationwide shortage of the anesthetic.

Companies in India and Israel put similar prohibitions on their drugs. As a result, states will be under a lot of pressure to find new sources of pentobarbital, Dieter said.

One of those sources could be compounding pharmacies, which turn out custom-made batches of drugs. But concerns about compounding pharmacies arose in 2012 after contaminated pain injections from a Massachusetts facility caused a meningitis outbreak that killed 64 people.

There are a number of painkillers, sedatives and paralyzing agents that can kill if administered in high doses. But switching to one of those could involve long, drawn-out bureaucratic or legislative delays.

And any switch is all but certain to bring legal challenges over the drug's effectiveness and the risk of pain in violation of the Constitution's ban on cruel and unusual punishment.

"There have been problems with lethal injection from its very beginning," Denno said. "We've seen botches for a long time. They've been particularly bad within the last few years because of the drug shortages and state's really not having drugs to use." 

It's almost certain lawyers will use McGuire's execution to challenge Ohio's plans to put a condemned Cleveland-area killer to death in March.

Al Jazeera and The Associated Press