It took Dennis McGuire almost 26 minutes to die.
Witnesses to his last moments — including reporters and his children — said he gasped for air for an “unusually long” 15 minutes of spasms and fits, with his fists clenched and his stomach “visibly” churning up and down.
McGuire, a 53-year-old who admitted to raping and killing a pregnant woman, was executed in Ohio in January. The case sparked a nationwide debate about states’ increased reliance on drugs, or combinations of drugs, of dubious origin and effectiveness.
His children filed a civil lawsuit against the state and civil rights advocates said the execution amounted to “torture.”
'This execution did not go according to plan.'
But Ohio’s Department of Rehabilitation and Correction (DRC) said on Monday that McGuire’s execution went just as it should have, and that it was both “humane” and “constitutional.”
Just in case though, it also decided to revise its protocol to boost the dosage of drugs used for future lethal injections.
"The massive doses of drugs given to McGuire rendered him unconscious before any of the irregular bodily movements were observed. There is no evidence that McGuire experienced any pain, distress, or anxiety," the department said in a statement. “DRC remains confident that its current drug regimen is sufficient to conduct a humane and constitutional execution, but also sees no reason not to increase the dosage levels to reaffirm that the drugs will, without doubt, cause profound general anesthetic and ventilatory depressant effects.”
That, critics said, is a contradiction.
“In the report they say that McGuire’s execution went according to plan, that he didn’t feel any sort of pain, that there weren’t any problems with the execution, and yet the conclusion of the report is that they are changing the protocol of drugs that they’re going to use for lethal injections. This then raises the question: if everything went according to plan, if everything went perfectly, then what reason would they have to change this protocol?” Mike Brickner, director of communications and public policy at the ACLU of Ohio, told VICE News.
“Whether or not the Ohio DRC wants to openly admit it, the fact that they are changing the amount of drugs points to what many of us already knew, that this execution did not go according to plan,” Brickner added. “It did not appear to go like any execution, McGuire appeared to be in pain.”
McGuire’s apparently agonizing death shed light on the nationwide shortage of drugs used to execute inmates, which has led some states to turn to cocktails with no proven track record, and to unknown drugs.
'You have more and more manufacturers in the pharmaceutical industry not wanting to participate in executions, they don’t want their product to be used to potentially torture and then kill prisoners on death row.'
Ohio — which reintroduced the death penalty in 1999 — prefers to execute its prisoners with a powerful sedative made by non-federally regulated pharmacies.
But when that’s not available, it turns to a backup combination of midazolam, a sedative, and hydromorphone, a painkiller.
Many of the most effective drugs used for executions are made at compounding pharmacies in Europe, where the EU bans the death penalty and where manufacturers have been threatening to stop exports to the US if their products are to be used to kill inmates.
“The key issue on a national level is that you have more and more manufacturers in the pharmaceutical industry not wanting to participate in executions, they don’t want their product to be used to potentially torture and then kill prisoners on death row,” Maya Foa, who runs the Stop the Lethal Injection Project at the prisoners’ rights organization Reprieve, told VICE News.
That, in theory, should be good news for opponents of capital punishment.
But while the drug shortage has caused some states to cut back on executions altogether, it has inspired others to get creative.
Earlier this month, Tennessee's state house passed a bill, now under senate consideration, that keeps lethal injection as the preferred option for executions, but allows the electric chair if the state is unable to obtain the necessary drugs.
The state executes inmates with a sedative normally used to euthanize animals, but it too has been running low on supplies.
“States like Ohio have moved to new cocktails that are not going through the due process that you would expect when you’re dealing with the most serious possible punishment,” Foa said, adding that the increased dosage is just “a variation on a protocol which has already proven to be torture.”
Ohio’s DRC insisted that the dosage that killed McGuire was just fine, but has now chosen to up the quantity of midazolam from 10 to 50mg and hydromorphone from 40 to 50mg — in the hopes, perhaps, that the next inmate to be executed won’t freak everyone out by convulsing so much.
'Frankly we have no idea if this new dosage will lead to less or more pain.'
“The idea that you would just change the dosage is just like conducting science experiments on human beings,” Foa said, adding that other states that have already taken Ohio’s lead on the cocktail will likely follow suit. “Everybody will be watching how the next execution goes; no state wants to botch an execution.”
The new dosage — like the one used in McGuire’s execution — will need to be approved by a judge in a federal district court. But that’s hardly enough of a safeguard, critics said.
“A judge signed off on the drug combination that was used for McGuire and that certainly didn’t work out as anyone intended, so simply because the court signs off and says, ‘this might sound like a reasonable protocol,’ does not mean that it will actually turn out that way,” Brickner said.
If Ohio can’t get its drug of choice in the next two weeks, Arthur Tyler, who is next in line for execution in the state, will have to test the new dosage on May 28, his scheduled execution date.
One out of every 25 death row inmates is likely innocent.
“Frankly we have no idea if this new dosage will lead to less or more pain, or less or more of these expressions that McGuire had, like the spasms and the gasping,” Brickner said. “We just don’t know, but the department is experimenting.”
Tyler’s case is also likely to receive plenty of attention as the defendant — who is accused of murdering a vegetable seller in 1983 — has substantial claims of innocence, and his lawyers are asking for clemency.
His co-defendant had originally admitted to firing the shot that killed the victim, but later changed his story and testified against Tyler as part of a plea deal that set him free after 20 years in prison.
Even the prosecutor in Tyler's case raised questions about the sentence, and requested that the death sentence be reduced to life in prison without parole.
In the video below, Richard Dieter, director of the Death Penalty Information Center, discusses Tyler's situation as well as a case, in Oklahoma, in which two men scheduled for execution on April 29 asked to know the source of the drug to be used in their lethal injection.
A judge with Oklahoma's Supreme Court denied their request on the grounds that the inmates haven't shown that these drugs will cause injuries to them.
"But of course they don't know, lawyers and inmates don't know whether there will be injuries without knowing whether there's a problem with the source of the drug," Dieter said.
Tonight, Oklahoma officials have postponed the execution of one of the two men, convicted murderer Charles Warner, after the execution of the other man was botched earlier in the night.
Clayton Lockett, died of a heart attack after officials messed up the lethal injection of drugs and Lockett was left shaking uncontrollably, the Associated Press reported.
Since 1999, Ohio has already exonerated six death row inmates it found to be innocent.
Nationwide, 138 prisoners have been exonerated and released between 1973 and 2004.
That means some of the 1,320 defendants executed in the US since 1977 were innocent, according to a new study published recently in the Proceedings of the National Academy of Sciences.
'The risk of executing someone who is innocent is very great.'
One out of every 25 death row inmates is likely innocent, the study claims — a much higher percentage than the 0.027 error rate claimed by Supreme Court Justice Antonin Scalia in 2007.
“The rate of error among death sentences is far greater than Justice Scalia's reassuring 0.027 percent,” the study said. “Most innocent defendants who have been sentenced to death have not been exonerated, and many — including the great majority of those who have been resentenced to life in prison — probably never will be.”
Add that to a judiciary that disproportionately convicts prisoners of color and lower economic means, critics said, and you have a system that not only executes innocent people much more often than we would like to think, but also does so in a discriminatory manner.
“Frankly it shouldn’t be a surprise. We know that justice isn’t perfect and the problem is that when you have something like the death penalty, a permanent punishment, you can’t alter it,” Brickner said. “The risk of executing someone who is innocent is very great.”
Follow Alice Speri on Twitter: @alicesperi