A federal judge ordered a 2-1/2-month ban on executions in Ohio to give defense lawyers time to mount legal challenges over revisions to the state's controversial lethal injection method.
At issue are changes Ohio made in April to its execution protocol that up the doses of both the sedative and the painkiller the state plans to use in its two-drug lethal injection cocktail. That drug combination has been used in a lower dose in just one execution in the US, with gruesome results.
US District Court Judge Gregory Frost’s order puts off all executions in Ohio until at least Aug. 15.
The state’s decision to update its execution protocol came after its last execution, on Jan. 16, took a record 26 minutes and set off what has since been a sustained national reflection on how capital punishment is practiced in the US. The inmate, Dennis McGuire, appeared to gasp and snort for at least 10 minutes before he died, witnesses said.
Mr. McGuire’s execution had used a never-before-tested duo of drugs – 10 milligrams of midazolam, a sedative, and 40 milligrams of hydromorphone, a painkiller – bought from a source that the state refused to name. Ohio, as well as several other states, had run out of the standard lethal injection drug, pentobarbital, on which it used to rely in executions, after the drug’s European supplier cut off the tap to states with capital punishment. Ohio then turned to a network of state-regulated pharmacies for an alternative.
McGuire’s lawyers had fought for a stay of execution over evidence that the protocol could cause McGuire to suffocate for up to five minutes. More than that, they said that the undisclosed source of the two drugs precluded them from investigating whether the drugs were clean and effective.
“From the reports we are getting, it sounds like everything we suggested to the court would happen did, in fact, happen,” Allen Bohnert, McGuire’s attorney, told the Monitor at the time.
After the execution, a high-profile legal panel in Washington bolstered Mr. Bohnert’s argument, saying that drug cocktails, versus single-drug methods, bear high potential for error, since the sedative can fail to render the condemned person unconscious, leaving him awake when subsequent drugs stop breathing.
Judge Frost had turned down the defense’s request to stay McGuire’s execution, saying that the execution was an experiment worth seeing through.
“There is absolutely no question that Ohio’s current protocol presents an experiment in lethal injection processes,” Frost wrote. “To pretend otherwise, or that either of the experts or this Court truly knows what the outcome of that experiment will be, would be disingenuous.”
“But as odd as it sounds, this is not a problem until it is actually a problem,” he wrote.
McGuire was executed for the 1989 rape and murder of a pregnant 22-year-old.
No executions have taken place in the US since an April execution in Oklahoma caused the inmate, Clayton Lockett, to die of a massive heart attack. Both US executions scheduled to take place since then have been halted over different issues – one, in Texas, over the state withholding low IQ scores; the other, in Missouri, over the state’s refusal to grant the inmate medical testing that might support his claim that execution would cause him severe, unusual pain.
Both court-ordered stays have rebuked the states for their hastiness in pushing to keep the executions on schedule, even as lawyers for the condemned inmates presented arguments showing that more time was needed to fully consider the unique facts of the cases.
Meanwhile, executions in Oklahoma are on hold for six months while the state conducts an investigation into what went wrong in Mr. Lockett’s execution.
The next execution in Ohio was supposed to be on July 2. The condemned man, Ronald Phillips, was sentenced to death for the 1993 rape and murder of a toddler. His execution had been scheduled for November 2013, but it had been postponed for the summer while courts mulled over his request to donate his organs. That request was denied earlier this spring.