It's what an expert anesthesiologist told Judge Gregory Frost that Dennis McGuire might experience when the good people of the State of Ohio put McGuire to death with intravenous doses of midazolam and hydromorphone, a combination never before used anywhere in an execution.
Frost said, sure, maybe. It's an experiment. But he wasn't convinced the risk was severe enough to stop it.
Of course, the 8th Amendment prohibits cruel and unusual punishment. On the other hand, as AP reporter Andrew Welsh-Huggins reported the other day,
that doesn't mean execution procedures must be entirely comfortable, Thomas Madden, an assistant Ohio attorney general, told Frost on Friday.
"You're not entitled to a pain-free execution," Madden said.
Not, at least according to the 8th Amendment as interpreted by the Supreme Court. The thing is, Ohio (and only Ohio, by the way) says you are entitled to just that. Here, omitting a bit at the beginning that changes nothing and adding italics for emphasis, is Section 2949.22(A) of the Ohio Revised Code:
[A] death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence is executed.
As an assistant attorney general grudgingly conceded in court when we were litigating that section in another lethal injection case some years ago, "painlessly" means without pain. Thing is, nobody takes that provision seriously. And in any event the issues before Judge Frost were what the U.S. Constitution allows.
And so they killed Dennis McGuire this morning. And it was pretty much what they'd been told. Alan Johnson, a reporter for the Columbus Dispatch, watched the execution and described what the witnesses saw.
Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.It was 10:53 when they pronounced McGuire dead.
Allen Bohnert, one of McGuire's lawyers, said it was a
failed, agonizing experiment by the state of Ohio. . . . The people of the state of Ohio should be appalled by what was done in their name.What Allen didn't say, but what he well might have, is
Told you so.Ohio has, of course, an unmatched track record of incompetence at executions. It took nearly 90 minutes to kill Joe Clark, close to 2 hours to kill Chris Newton, and of course they failed to kill Rommell Broom.
But kill we will.
No state outside the south has executed so many as we have here. It's not even close. And we're going strong. As I wrote yesterday, we've got folks lined up for the needle through January 2016.
Enthusiasm and incompetence. A troubling combination of traits. But that's us.
While he was being killed this morning, Dennis McGuire's wife and children held hands and sobbed. Joy Stewart's family said justice was served.
If that's justice, I don't want any part of it.