COLUMBUS, Ohio (AP) — A condemned killer's attempt to stop his execution on the grounds he could experience a terrifying sensation of suffocation is the latest argument directed at whether use of a lethal drug will create an unconstitutionally cruel death.
Last year, 450-pound inmate Ronald Post argued he was so overweight he could not be put to death humanely. Double-killer Richard Cooey made a similar argument in 2008.
In 2010, serial rapist Darryl Durr argued he might be violently allergic to Ohio's execution drug.
Each time, U.S. District Court Judge Gregory Frost, a veteran of the state's capital punishment legal challenges, ultimately allowed the execution to proceed. In his latest ruling, he said Monday that McGuire had failed to present evidence he would suffer breathing problems alleged by his attorneys — a phenomenon known as "air hunger" — and said the risk to McGuire is within constitutional limits.
That said, Frost acknowledged the novelty of Ohio's never tried two-drug combination, calling it "an experiment in lethal injection processes."
But until a method violates the Constitution, "The law teaches that Ohio is free to innovate and to evolve its procedures for administering capital punishment," Frost said.
The state opposed any delay, presenting evidence that disputed the air hunger scenario.
McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. Attorneys say they're disappointed by the decision but pleased Frost recognized the untried nature of the process. They haven't decided whether to appeal.
McGuire has a separate request before the U.S. Supreme Court to delay his execution on the grounds that a jury never heard the full extent of his chaotic and abusive childhood. The state asked the court Monday to reject that appeal, saying McGuire's "challenges to his sentence have spanned decades and failed."