Tuesday, Jun 19, 2018
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Ohio to keep execution drugs, but raise dosages

COLUMBUS — The state of Ohio on Monday insisted the process used to execute Dennis McGuire four months ago was “humane and constitutional,” but it nevertheless plans to increase the dosage of its unique two-drug regimen for future executions.

Starting with the next lethal injection set for Arthur Tyler of Cuyahoga County on May 28, the intravenous dosage of midazolam, a sedative, will be increased five times while the dose of hydromorphone, a potent painkiller, will be increased by 20 percent, both to 50 milligrams.

The department said it “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, consistent with the prior testimony and declaration of McGuire’s expert … and consistent with the prior testimony and declarations of [the state’s] expert witness.”

Ohio faces a shortage of its preferred drug, the powerful barbiturate pentobarbital, because its European manufacturer objects to its use in executions. After it couldn’t find a compounding pharmacy to replicate the drug, Ohio became the first state to fall back on a new two-drug backup combination with the lethal injection of McGuire, 53.

Witnesses described McGuire as gasping for air and making loud snorting sounds during the 26 minutes after the drugs began to

flow. His family has sued the state in federal court, arguing that Ohio’s execution method constituted “cruel and unusual punishment” without actually challenging the constitutionality of the death penalty itself.

The state’s review found that the protocol was carried out as planned.

“[The Department of Rehabilitation and Correction] believes that the two drugs used in the McGuire execution had their intended effect and that McGuire did not experience any pain or distress,” reads the report. “The massive doses of drugs given to McGuire rendered him unconscious before any of the irregular bodily movements were observed.

“The bodily movements that were observed were consistent with the effects of the drugs, his obesity, and other body characteristics, and involuntary muscle contractions associated with the ending of respiratory function. There is no evidence that McGuire experienced any pain, distress, or anxiety.”

Jon Paul Rion, a Dayton attorney representing the McGuire family, said the review’s findings alter nothing with the lawsuit pending in U.S. District Court.

“The report clearly ignores the clear physical data presented in this case,” Mr. Rion said. “McGuire was clenching his fists, arching his back, and gasping for air, and none of that information is in the report. … Arching of the back and clenching of fists are clearly indications of consciousness.

“One of the most incredible parts of the state’s action in McGuire’s case is they used a human as an experiment.”

Mr. Rion continued: “Once again, we have no scientific data as to whether or not special therapeutic drugs should or could be used to cause death, to kill. They weren’t designed for that. The [U.S. Food and Drug Administration] didn’t approve them for that purpose.”

It remains to be seen whether Tyler’s execution will go forward as scheduled. The prosecution has agreed with the defense that Gov. John Kasich should grant clemency in his case because of doubts about who actually fired the gun that killed an elderly merchant in 1983.

A recommendation is pending from the Ohio Parole Board.

Mr. Rion recently served on a task force, chosen by Ohio Supreme Court Chief Justice Maureen O’Connor and the Ohio State Bar Association, that looked at the fairness of Ohio’s application of the death penalty.

Although it made a number of recommendations regarding such things as sentencing, evidence, and racial bias, the task force was not charged with second-guessing the execution process or whether Ohio should have the death penalty at all.

With the task force’s final report expected to be released in mid-May, Mr. Rion said the state should convene another panel to look at Ohio’s execution protocol.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.

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