GateHouse: Lethal injection: One state’s ‘tortured’ history

Matthew T. Mangino
GateHouse News Service
January 25, 2014

Last week’s much maligned execution of Dennis McGuire in Ohio is just the latest in a series of high profile events that have defined the state’s “tortured” history of lethal injection. McGuire was executed with an untested two-drug lethal injection protocol.

The two drugs, midazolam, a sedative, and hydromorphone, an opiate derivative, resulted in an execution that took an excruciating 25 minutes instead of an anticipated 10 minutes.

Ohio’s lethal injection woes began in September of 2009. Romell Broom, a condemned killer, was scheduled to be executed. On that day, personnel in the death chamber of Lucasville State Prison were unable to access a suitable vein for the injection of the three-drug lethal injection protocol used at the time. Over several hours, prison staff probed for a vein approximately 18 times before Gov. Ted Strickland stopped the execution.
            Ohio put executions on hold for three months while it studied options for establishing an alternative lethal injection protocol. The state came back and took the unprecedented step of moving from a three-drug protocol to a single-drug protocol.

The single-drug method has since been adopted by seven other states—Arizona, Georgia, Idaho, Missouri, South Dakota, Texas, and Washington—according to the Death Penalty Information Center.
Kenneth Biros was the first inmate in Ohio, and across the country, executed using a single drug.  He died about 10 minutes after the lethal dose of Pentobarbital, an anesthetic, was administered. Attorneys for Biros had argued that state's new, untested would be painful and unconstitutional.  The argument was made in front of U.S. District Court Judge Gregory Frost.
Judge Frost's name would continue to pop-up throughout the unusual, and at times confounding, twists and turns taken by the Ohio Department of Rehabilitation and Correction with regard to the state's lethal injection protocol.
Frost said Ohio's execution system still had flaws that "raised profound concerns and present unnecessary risk."  He described the new single-drug protocol as "impermissible human experimentation."  However, he said Biros' arguments against lethal injection were "unpersuasive."

In less than a year, Frost again reversed course and gave tepid approval to the scheduled execution of Mark Wiles. “The protocol is constitutional as written, and executions are lawful, but the problem has been Ohio’s repeated inability to do what it says it will do,” he wrote.

Subsequently, Frost continued to overrule objections to lethal injection. Last year, morbidly obese inmate Ronald Post argued he was so overweight he could not be put to death humanely. Frost disagreed.

Last fall, Ohio announced that it had run out of its lethal injection drug, pentobarbital. The state then moved to the untested two-drug protocol and Dennis McGuire was slated to be the first execution under the new protocol.
McGuire challenged the protocol and like the other lethal injection challenges the case made its way to Judge Frost.  He ruled that McGuire had failed to present sufficient evidence that he would unconstitutionally suffer.
"There is absolutely no question that Ohio's current [two-drug] protocol presents an experiment in lethal injection processes," Frost wrote.  However, he refused to stop the execution.

According to the Columbus Dispatch, the chemicals began flowing into McGuire at about 10:29 a.m., and for a while, he was quiet, closing his eyes and turning his face up and away from his family.

However, about 10:34 a.m., he began struggling. His body strained against the restraints around his body, and he repeatedly gasped for air, making snorting and choking sounds for about 10 minutes. His chest and stomach heaved; his left hand, which he had used minutes earlier to wave goodbye to his family, clenched in a fist.

McGuire eventually issued two final, silent gasps and became still. He was pronounced dead at 10:53 a.m.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)