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Cruel and unusual punishment?

The family of a man executed using an untested lethal injection cocktail will file suit alleging that his constitutional rights were violated.
/ Source: MSNBC TV

The family of a man executed using an untested lethal injection cocktail will file suit alleging that his constitutional rights were violated.

The family of an Ohio inmate whose Thursday execution took nearly 25 minutes and was marked with ten minutes of gasping and struggling will file a lawsuit over the circumstances of his death.

Dennis McGuire was put to death using a combination of intravenous drugs that had never before been used in a lethal injection execution. John Paul Rion, the attorney representing McGuire’s children in their lawsuit, said at a press conference that the execution violated McGuire’s constitutional protection against cruel and unusual punishment.

“I can’t think of any other way to describe it than torture,” daughter Amber McGuire said in a statement.

While fighting last week to block the execution, McGuire’s lawyers argued that the new drug combination could cause “agony and terror” before killing him. Ohio prison officials opted to use midazolam, a sedative, and the painkiller hydromorphone because manufacturers of other drugs used in executions will no longer export them to be used for capital punishment.

The lawsuit could have implications in other states that are also struggling to find new ways to execute convicts thanks to the nationwide drug shortage. Thirty two states authorize the use of lethal injection, and there are inmates on death row in Connecticut, Maryland, and New Mexico that are still facing lethal injection executions.

Ohio has another execution scheduled for March, but the circumstances of McGuire’s death offer a strong argument for that inmate’s defense team. “I think they’re going to look at these challenges, especially those involving new sources and new drugs, and ask the state to prove their case,” Richard Dieter, Executive Director of the anti-death penalty Death Penalty Information Center told msnbc. The fact that doctors correctly predicted gasping and “air hunger” could make it easier for judges to prevent more untested methods from being used.

“The burden is going to be shifting a bit in these hearings. Every lethal injection gets challenged in the courts, but now there’s going to be more scrutiny of the state’s methods,” Dieter said.

Dennis McGuire was sentenced to death for the 1989 rape and murder of Joy Stewart. The state’s Assistant Attorney General Thomas Madden argued in response to McGuire’s lawyers that “you’re not entitled to a pain-free execution.” A federal judge agreed, but ordered the state to keep the syringes, vials, and packaging used in the execution.

Speaking after McGuire’s death, his attorney Allen Bohnert said, “The people of the state of Ohio should be appalled at what was done here today in their names.”