Why Ohio's Experimental Lethal Injection Was a Spectacular Failure

At first blush, the official minute-by-minute timeline of the execution of convicted rapist and murderer Dennis McGuire by lethal injection reads as you'd expect a death chamber transcript to read:

1.16.2014 10:12:13AM Reading of the death warrant is complete

1.16.2014 10:13:25AM Execution team has begun applying restraints

1.16.2014 10:25:20AM Two sticks in right arm, one stick left arm; left arm is primary

1.16.2014 10:27:24AM Last statement is complete

1.16.2014 10:28:24AM Syringe #1 is complete 10:28:09

1.16.2014 10:52:29AM No heart sounds, no lung sounds

1.16.2014 10:54:18AM Warden announced time of death 10:53am

Look a bit closer, though, and one thing becomes strikingly clear: It took an usually long time—over 20 minutes—for McGuire to die. As lethal injection expert Debrah Denno recently told The New York Times, a typical lethal injection "takes about for or five minutes, if done properly." ABC reports that McGuire's was the longest execution since Ohio brought back capital punishment 15 years ago.

Also noticeably absent from the Ohio of department of corrections' official record of McGuire's execution, which took place at the Southern Ohio Correctional Facility on January 16, was the apparent distress the 53-year-old inmate endured after being administered the prescribed lethal dose of a controversial two-drug cocktail. At least one eyewitness account of his final moments say McGuire let out bellowing snores and snorts as the combination of midzolam (a sedative) and hydromorphone (morphine derivative) took hold. At one point, McGuire struggled to sit upright.

It was the first time the midzolam-hydromorphone combinaton has been used in the US. With none of the traditional lethal injection drugs at its disposal—Ohio ran out of pentobarbitol, which is manufactured in Denmark, in 2009—the state took a hard line in moving forward with the never-before-tried cocktail, which defense attorneys and anesthesiologists alike said would leave McGuire "writhing in agony from 'air hunger'" before he died of what would amount to a narcotic overdose.

"There were experts in Ohio who said this might happen," Richard Dieter, executive director of the Death Penalty Information Center, told Motherboard. "This drug [combination] can cause oxygen deprivation and air hunger and the inmate might struggle for air under these drugs, and that’s exactly what happened to some physical outward appearance at least."

Ohio wanted to use pentobarbitol, Dieter adds, because midzolam and hydromorphone aren't the first or second choice for carrying out lethal injections in Ohio. The two-drug cocktail is actually a backup procedure used in the event that executioners are unable to find a vein to tap. As such, Ohio wanted to get pentobarbital from a compounding pharmacy, but that was made impossible about a month out from the execution, Dieter says, leaving the state to argue there was no choice but to move forward by using the backup procedure. (For its part, the state's attorney's office is saying that no inmate on death row is "entitled to a pain-free execution".)

So there were "questions right from the beginning," Dieter admits. The question, then, is whether this was just a one-time accident despite a level of due diligence, or negligence on the part of the state? That remains to be seen. If it's the latter, then Ohio may have violated McGuire's constitutional protection from "cruel and unusual punishment." Dieter contends that there's strong evidence that Ohio "didn't" have knowledge of what was going to happen and that it didn't go as planned." And yet the Supreme Court did rule beforehand that this would all be an "experiment," so McGuire's execution is not precedent setting.

For now, the ACLU is now calling the governor to halt executions in Ohio and McGuire's family has filed a civil suit against the state, which Dieter says will be a difficult suit to win, this time anyway. Ohio, or any other of the 32 states where execution is legal, is unlikely to use this drug cocktail again.

With additional reporting by Ben Richmond.

@thebanderson