A judge for the US District Court for the Southern District of Ohio [official website] on Monday refused to halt the execution of convicted Ohio murderer Dennis McGuire, who is scheduled to die by the administration of a never-before-tried drug that may potentially inflict pain. Ohio no longer has access to its former execution drug, pentobarbital, since its manufacturer prohibited its use for executions. McGuire's counsel argued [JURIST report] that the substituted two-drug lethal injection will not sedate McGuire instantaneously, but may leave him conscious and suffering from "air hunger" for up to five minutes. The state presented evidence to dispute the claims of alleged "air hunger" and argued against any delay of proceedings. Ruling that the evidence failed to prove a substantial risk of severe pain to McGuire, the judge found that the new injection will not constitute a violation of the Eighth Amendment [LII backgrounder].
Ohio is one of many states to recently suffer a shortage of execution drug supply. The shortage of sodium thiopental, a drug used in the lethal injection process, in the US has caused several states to modify lethal injection protocol. In August a state judge in Arkansas ruled [JURIST report] that a state law provision allowing "any other chemical or chemicals" to be used for lethal injections violates the constitution's protection against cruel and unusual punishment. In March of last year, two Texas inmates requested stays on their executions [USA Today report] to obtain more information on the new protocol and possibly challenge the protocol as unconstitutional. Texas acknowledged that its supply of sodium thiopental had an expiration date of March 1. Arizona, Georgia and Oklahoma have faced similar challenges and are seeking to substitute the sodium thiopental used in the lethal injection "cocktail" with pentobarbital. Kentucky and Tennessee surrendered supplies of sodium thiopental [NYT report] to the Drug Enforcement Administration (DEA) after the agency seized Georgia's supply in order to investigate whether the drug was properly imported.