COLUMBUS, Ohio (AP) — Ohio said Monday it's boosting the dosages of its lethal injection drugs even as it stands by the January execution of an inmate who made snorting and gasping sounds that led to a civil rights lawsuit by his family and calls for a moratorium.
The state's new policy considerably increases the amount of the sedative used in its two-drug combination and raises the amount of the painkiller, which are injected simultaneously, according to a court filing. The state said it was making the changes "to allay any remaining concerns" after the last execution.
The Department of Rehabilitation and Correction said its review of the Jan. 16 execution of Dennis McGuire determined he was asleep and unconscious a few minutes after the drugs were administered and his execution was conducted in a constitutional manner.
"He did not experience pain, distress or air hunger after the drugs were administered or when the bodily movements and sounds occurred," the state said. The department said it "finds no harm in increasing the dosage levels of its drugs," after consulting with its medical expert and examining other states' practices, spokeswoman JoEllen Smith said.
The state's policy change comes 30 days before the next scheduled execution on May 28, when a man convicted of killing a Cleveland produce vendor in 1983 is set to die. McGuire's fitful 26-minute execution was the longest since Ohio resumed putting inmates to death in 1999. His adult children complained it amounted to torture, with his son saying: "Nobody deserves to go through that."
The McGuire family's attorney criticized the state's report, saying it relied on a medical expert who predicted before the execution that McGuire wouldn't experience air hunger, desperate attempts to catch one's breath while suffocating.
"That causes some concern as to whether they looked at it from both sides," defense attorney Jon Paul Rion said. Lawyers challenging the constitutionality of Ohio's two-drug method, the only such procedure in the country, also criticized the report.
The state's execution policy calls for it to use a specialty dose of the powerful sedative pentobarbital, made by non-federally regulated pharmacies, as its first choice. If that can't be obtained, as has happened twice, it goes to a backup method of midazolam, a sedative, and hydromorphone, a painkiller.
The state said its review found high doses of hydromorphone commonly cause people to stop breathing, as does midazolam. With the drugs given together, it said, the effect "is much greater." In about two weeks, the state must say whether it has found pentobarbital for the May 28 execution of Arthur Tyler or must go to the backup method. In a rare move, Tyler's attorneys and prosecutors are asking for him be spared, though for different reasons.
States are in a bind for two main reasons: European companies have cut off supplies of certain execution drugs because of opposition to capital punishment in Europe. And states can't simply switch to other chemicals without triggering legal challenges.
Texas has struggled to obtain execution drugs and has had to change its three-drug protocol to a dose of pentobarbital.