A condemned Ohio prisoner scheduled for execution tomorrow has been denied a last-minute appeal by the federal government. Dennis McGuire's execution is considered controversial because the combination of drugs he will receive has never been tested or used before.
"The evidence before this court fails to present a substantial risk that McGuire will experience severe pain," Judge Gregory Frost said in his ruling on Monday. "The law teaches that Ohio is free to innovate and to evolve its procedures for administering capital punishment."
Attorneys for McGuire argued that the combination of midazolam and hydromorphone could leave their client struggling for air and suffering until he finally dies, which constitutes a cruel and unusual punishment.
"McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," attorneys stated in their court filing.
"You're not entitled to a pain-free execution," assistant Ohio attorney general Thomas Madden told Judge Frost.
McGuire was found guilty of the 1989 rape and murder of Joy Stewart. His attorneys began pleading for his death sentence to be overturned due to a lack of the traditional drug used for executions, which is becoming a national problem. Pentobarbital was the standard for all U.S. executions until the main provider learned what it was being used for and cut off the U.S.'s supply. Many states have worked with pharmaceutical companies to come up with a two-drug solution to the problem and have continued carrying out executions.
The state of Florida currently uses a three-drug system that includes midazolam, which Dr. Lee Evans told the state "is faster acting than pentobarbital in inducing unconsciousness." Florida has already used the drug in two executions, leading the way for other states to use it as well.
Midazolam, Judge Phyllis Rosier of Florida's Eighth Judicial Circuit, said "is a FDA-approved drug routinely used as a pre-anesthetic sedative. There is no dispute that the dosage amount used in Florida's protocol is such that it would induce not only unconsciousness when properly administered, but also respiratory arrest and ultimately death."