The prolonged execution of convicted murderer Dennis McGuire on Thursday has stirred a controversy over new drugs used to administer lethal injections. McGuire was convicted [AP report] in 1994 of raping and murdering a 22-year-old girl in 1989 and lost his appeal [text, PDF] to the Supreme Court of Ohio in 1997. Earlier this month McGuire’s attorneys filed for a stay of execution [JURIST report] with the US District Court for the Southern District of Ohio [official website], claiming that the untried execution method would cause McGuire to experience a suffocation-like syndrome known as air hunger. On Monday a judge for the US District Court for the Southern District of Ohio refused to halt the execution, even though the drug had never been used before and had the potential to inflict pain on McGuire.The judge found that the evidence failed to prove a substantial risk of severe pain, and therefore the new injection would not constitute a violation of the Eighth Amendment [Cornell LII backgrounder]. Several states that employ capital punishment have been seeking alternative lethal injection compounds because the European Union (EU) barred [JURIST report] German and Danish drugmakers from selling sodium thiopental, a commonly used lethal injection compound, to US prisons in 2011. In July the the US Court of Appeals for the District of Columbia Circuit [official website] ruled [text, PDF] that the Food and Drug Administration (FDA) [official website] policy that allowed the importation of thiopental was illegal [JURIST report].
The shortage of sodium thiopental in the US has caused several states to modify lethal injection protocol. In August a state judge in Arkansas ruled [JURIST report] that a state law provision allowing “any other chemical or chemicals” to be used for lethal injections violates the constitution’s protection against cruel and unusual punishment. In 2011 two Texas inmates requested stays on their executions [USA Today report] to obtain more information on the new protocol and possibly challenge the protocol as unconstitutional. Texas acknowledged that its supply of sodium thiopental had an expiration date of March 1. Arizona, Georgia and Oklahoma have faced similar challenges and are seeking to substitute the sodium thiopental used in the lethal injection “cocktail” with pentobarbital. Kentucky and Tennessee surrendered supplies of sodium thiopental [NYT report] to the Drug Enforcement Administration (DEA) after the agency seized Georgia’s supply in order to investigate whether the drug was properly imported.