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ACLU, Defense Attorney Question Ohio's Decision to Increase Lethal Injection Dosage

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The Ohio Department of Rehabilitation and Correction has reviewed what was seen as a problematic execution in January, and says it will continue to use the drugs that were used for the first time in history for that lethal injection. But Ohio Public Radio’s Jo Ingles explains, the prisons department’s report on that execution is now being questioned.

Wednesday, April 30, 2014 at 2:04 pm

When death row inmate Dennis McGuire was given a lethal injection four months ago, witnesses described him as gasping for air, making loud noises, and showing movements that suggested he was in pain. And it continued for 26 minutes until McGuire was pronounced dead.

The Ohio Department of Rehabilitation and Correction decided to review the protocol -- the drugs, dosages and process -- used for lethal injections.

And the agency’s spokeswoman, Jo Ellen Smith, says the department remains confident that it conducted the execution in a humane, constitutional way and that McGuire was completely unconscious and felt no pain.

But Smith says after speaking with the Department’s medical expert, examining other states’ practices and considering the recommendations of the inmate’s medical expert, the agency finds no harm in increasing the dosage levels of its drugs so it will do that in the future.

"This is the seventh change in five years to their protocol so once again it is not based upon scientific information. It’s an experiment," said Jon Paul Rion, the attorney who is representing McGuire’s family in a wrongful death suit against the state.

Rion said this report was not produced by independent analysis of the situation. He said the people who gave clearance for the execution are largely the same ones who produced this report. And that’s not his only criticism.

"We also know that the state did not interview all witnesses to the event, nor did they take into account certain physiological symptoms that were evident to everyone in the room, mainly the clenching of fists and the arching of the back," Rion said. "These are not simply non-conscious reactions. Those are clear indicators of consciousness and pain. They're not involuntary movements of the body and in the report, they don’t even mention or deal with that issue."

The American Civil Liberties Union of Ohio also questions the report. Spokesman Mike Brickner asked if the protocol was working, why is the state upping the dosages of the drugs for the next execution?

"There’s a difference between what the Department of Rehabilitation and Corrections is saying and what they're doing," Brickner said. "In their report, they said Mr. McGuire’s execution went according to the plan, that he didn’t have any sort of pain, there weren’t any problems and that the medication worked just fine. And yet they are changing their protocols and changing the amount of drugs they will be giving during lethal injections. That really begs the question of if everything worked according to plan, what possible reason would there be to change the plan?"

It’s no secret that the ACLU of Ohio would like to see a moratorium on executions for a variety of other reasons, including some social justice concerns that were recently cited in a report by a task force chosen by the Ohio Supreme Court and the Ohio State Bar Association. That report did not look at the protocol for executions but it did make a number of recommendations for future sentencing, evidence and steps that should be taken to prevent racial bias.

The head of the Ohio Prosecuting Attorneys Association, John Murphy, disagrees with the findings of that task force study. But he says he isn’t taking a position on the lethal injection protocol itself.

"If you want to go back to square one, we support the death penalty and we support it be enforced as efficiently and as humanely as possible," Murphy said. "But the exact method used and what combination of drugs or whatever is really not within our expertise."

Murphy says he agrees with the four prosecutors on the task force who came out in opposition of the initial recommendations made by majority members. Murphy says some of the early proposals cited by the majority of members on the task force are far-fetched and not realistic. The final report from that panel is expected next month.