In a press conference scheduled for later today, lawyers representing the family of Dennis McGuire will argue that the experimental drug cocktail used to execute him rendered the procedure unconstitutional.
Lead attorney Allan Bohnert told the Associated Press that it took over 25 minutes for McGuire to die, and called the “unusually long execution…a failed, agonizing experiment.”
In an editorial published a day before the execution, Elisabeth A. Semel — the director of the Death Penalty Clinic at U.C. Berkeley School of Law — explained the need for experimental execution cocktails like the combination of midazolam and hydromorphone that was used in the McGuire procedure.
Increased pressure from anti-death penalty advocates has led many pharmaceutical companies to cease production of the drugs once commonly used in executions — foremost among them sodium thiopental and pentobarbital — or demand that their products not be used in executions.
Some states responded by turning to compounding pharmacies, which can produce drugs chemically identical to those previously used; however, in doing so they risk violating federal law, as “copycat” versions of FDA-approved drugs are illegal.
This situation has driven other states, like Ohio, to begin experimenting with new drug cocktails to execute its death row inmates. In an earlier hearing in the McGuire case, the state’s expert, Dr. Mark Dershwitz, said of the combination of midazolam and hydromorphone used to execute McGuire: “I truly don’t know how many minutes it will take the inmate to stop breathing…[t]here is no science to guide me on exactly how long this is going to take.”
It will now be up to the courts to decide whether the 25 minutes it took McGuire to die constitutes a “cruel and unusual punishment.”
Scott Eric Kaufman is the proprietor of the AV Club's Internet Film School and, in addition to Raw Story, also writes for Lawyers, Guns & Money. He earned a Ph.D. in English Literature from the University of California, Irvine in 2008.
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