The botched and gruesome execution of convicted murderer Dennis McGuire last Thursday has brought the debate over the death penalty back to the forefront in Ohio and elsewhere as many question the humanity of a practice which, experimental or otherwise, may amount to cruel and unusual punishment.
According to reports, it took McGuire 26 minutes to die after the intravenous doses of the previously untested cocktail of sedative midazolam and the painkiller hydromorphone left him struggling and gasping for air.
Following the execution, the American Civil Liberties Union (ACLU) wrote to Ohio Governor John Kasich Sunday urging him to use executive authority to place a moratorium on executions in the state, saying these botched executions are "not justice" and "not humane."
"This is not about Dennis McGuire, his terrible crimes, or the crimes of others who await execution on death row," writes the ACLU. "It is about our duty as a society that sits in judgement of those who are convicted of crimes to treat them humanely and ensure their punishment does not violate the Constitution."
According to the group, five other people await execution in Ohio this year. It is unclear whether they will die by the same drug combination.
David Waisel, an associate professor of anaesthesia at Harvard medical school, said he was "horrified and aghast" that the state prison system had gone ahead with the execution despite his earlier testimony that the proposed two-drug protocol would cause the inmate "agony and horror."
“Initially I was angry, because I told them this would happen. Now I'm very sad about this," Waisel told the Guardian. "This was all totally unnecessary."
The Guardian reports:
On 6 January, Waisel presented Judge Gregory Frost, sitting in the US district court for the southern district of Ohio, with a nine-page declaration in which he spelled out his prediction of what would happen were the state to proceed with a previously untested use of the two drugs. His testimony turned out to foreshadow the eyewitness accounts that reported McGuire gasping for breath for at least 10 minutes, snorting loudly, clenching his fists and trying to sit up from the gurney.
Waisel warned the court its proposed dose of midazolam was too low to induce anaesthesia. He also said the two drugs would take several minutes to kick in, leaving McGuire aware of what was happening while at the same time suppressing his breathing and giving him the sensation that he was suffocating, an experience known as “air hunger”.
“I told them that he was going to suffer the horror of suffocation for five minutes—in fact, it appears to have been much longer than that,” he added.
Attorney Jon Paul Rion, a lawyer representing McGuire's family, said the family plans to file a lawsuit in the upcoming days seeking an injunction against the state's use of the drug combination, alleging that it represents cruel and unusual punishment and, as such, violates the Eighth Amendment to the Constitution, CNN reports.
Referring to Waisel's testimony, Rion told reporters that "before the execution, there was a series of experts who testified in federal court that this is a possible to likely outcome to that procedure."
"Even if execution itself has not (yet) been found a violation of the U.S. Constitution’s ban on 'cruel' and unusual punishment, certainly a torturous death using experimental drug combinations is," writes Mike Brickner, Communications and Public Policy Director at the ACLU.
Brickner cites a state taskforce which has identified a number of "troubling issues" facing the use of capital punishment in the state including "large racial and geographic disparities in capital convictions, the use of the death penalty on severely mentally ill people, and the overall arbitrariness of the death penalty."
"None of this is new information," he writes, "And yet, the machinery of the death penalty carries on in vain with new drugs, methods, and experiments. Try as we might, these new methods cannot disguise the fact that the death penalty in America is simply not working."