Author: Johnny Holschuh, Contributing Member, University of Cincinnati Law Review
The “horrific” execution of Dennis McGuire by the state of Ohio in January 2014 has aroused international attention regarding the death penalty. The decision by the Southern District of Ohio denying McGuire’s federal petition challenging Ohio’s use of a new drug combination in his execution demonstrates the inability of the U.S. Supreme Court’s Baze v. Rees test to ensure that rapidly changing execution protocols utilizing new drugs and dosages to kill condemned inmates do not violate the Eighth Amendment. With both international and domestic law prohibiting non-consensual scientific experimentation on humans, the legitimacy of the Baze test and the legality of experimenting with lethal injection drugs must be reconsidered.
Challenging Death Penalty Protocols under Baze v. Rees
In its 2008 decision Baze v. Rees, the Supreme Court addressed the Eighth Amendment constitutionality of Kentucky’s lethal injection protocol. The petitioners, two prisoners sentenced to death by Kentucky, conceded the humaneness of the lethal injection procedure if applied as intended, but challenged the protocol as unconstitutional due to the risk that the protocol would not be implemented as prescribed. They offered a never-before-tried one-drug method as an alternative to Kentucky’s three-drug protocol. The plurality opinion by Justice Roberts denied the petition and held that an individual subjected to a risk of future harm may establish an Eighth Amendment violation only by showing the conditions present a risk that is “sure or very likelyto cause serious illness and needless suffering, and give rise to sufficiently imminentdangers.” Additionally, to challenge an execution protocol effectively, the petitioner must present alternatives that “address a substantial risk of serious harm” and are “feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.”
In re Ohio Execution Protocol Litigation (McGuire)
In re Ohio Execution Protocol Litigation is a series of Southern District of Ohio cases involving condemned prisoners challenging the constitutionality of Ohio’s death penalty protocols under the Eighth Amendment and the Equal Protection Clause. The majority of cases have encompassed Equal Protection Clause challenges regarding Ohio’s adherence to its protocols when performing executions, although a recent challenge by Dennis McGuire contested the Eighth Amendment constitutionality of Ohio’s new protocol. McGuire argued that Ohio’s use of a two-drug combination never before used to execute a human would subject him to an unconstitutionally substantial risk of severe pain.
As a 42 U.S.C. § 1983 claim seeking injunctive relief, McGuire had to prove a likelihood of success on meeting Baze’s requirements. That is, McGuire had to show a likelihood of success of proving that Ohio’s new protocol ignored a “sure or very likely risk of serious pain and needless suffering,” and that this would create a “demonstrated risk of severe pain that is substantial when compared to the known and available alternatives.” Furthermore, McGuire had to provide “feasible, readily implemented alternatives that significantly reduce a substantial risk of severe pain.”
McGuire’s expert testified that, due to McGuire’s physical and medical characteristics, there would be a five-minute window in which he would be conscious and experiencing air hunger, “a terrifying inability to obtain a breath to satisfy the ventilator drive.” The State’s expert disagreed, arguing, “the window for experiencing air hunger is so much less than McGuire argues that it is likely non-existent or at worst far less than 5 minutes.” The court, assuming arguendo that inflicting air hunger would constitute cruel and unusual punishment, credited the State’s expert witness as having more credible testimony, rejected McGuire’s expert’s testimony, and found that McGuire had failed to persuade the court he was likely to experience air hunger.
The District Court was frank, however, in its assessment of the situation: “There is absolutely no question that Ohio’s current protocol presents an experiment in lethal injection processes.” On January 16, three days after this opinion was issued, McGuire was executed. The Columbus Dispatch described the “horrific” execution:
“[A]bout 10:34 a.m., he began struggling. His body strained against the restraints around his body, and he repeatedly gasped for air, making snorting and choking sounds for about 10 minutes. His chest and stomach heaved; his left hand, which he had used minutes earlier to wave goodbye to his family, clenched in a fist. McGuire eventually issued two final, silent gasps and became still. He was pronounced dead at 10:53 a.m.”
Baze’s Failureto Ensure the Constitutionality of Lethal Injection Drug Experimentation
The Supreme Court created the Baze test to address risks related to states’ experimentation with execution procedures. McGuire demonstrates the problems of applying the Baze test to address risks related to states experimenting with execution substances and dosage amounts. When addressing the procedures of state protocols, it is possible to point to previous executions to show how a procedure went wrong, and to provide alternative procedures states can adopt to fix the error.  Proving these elements is much more difficult when states are experimenting with new drugs or dosage amounts.
Baze’s strict requirements for proving a demonstrated risk of severe pain is nearly impossible for petitioners to prove when states experiment with drugs and dosages. In McGuire, the two-drug combination used to kill McGuire had never been used, preventing McGuire from proving a likelihood that it would cause him to experience air hunger. The Southern District of Ohio noted “[t]he newness of this protocol and the obvious lack of human trials create a dearth of studies upon which to draw” and that the lack of “actual application in studies, and the unpredictable nature of human response make [the] inquiry at best a contest of probabilities.”
Additionally, unique, individual characteristics mean that reactions to drugs and the potency of drugs are difficult to prove. For example, McGuire, who was severely obese, was given only 10 mg of midazolam, when usually around 35-40 mg of the drug is needed to induce anesthesia in persons of average weight. For all intents, McGuire’s execution was, as the District Court noted, an “experiment in lethal injection processes,” making Baze’s requirement of proof of risk of pain practically insurmountable.
Requiring the inmate to undertake the morbid task of suggesting alternative drugs that “significantly reduce a substantial risk of severe pain” when states are experimenting with the execution drug is also nearly impossible for the same reason it is difficult to prove the new drug will cause a substantial risk of pain. Given the restrictions on the drugs available for executions, finding a “feasible, readily implemented” substitute is all but futile. In McGuire, professional ethical restrictions limited McGuire’s ability to present medical experts who could testify regarding how best to execute an individual. Moreover, new judicially constructed discovery rules derived from Baze restrict the ability of petitioners in Eighth Amendment challenges to discover the identities of prescribing physicians or supplying pharmacies and laboratories, creating a Catch-22 situation in which capital appeals lawyers will have a difficult time obtaining information needed to propose the required alternative.
The Unconstitutionality of Lethal Injection Human Experimentation
In the six years since Baze, the availability of drugs used for executions has been substantially reduced, largely due to European Union human rights regulations restricting the exportation of drugs that may be used for torture or capital punishment. As a result, many states have reacted by rapidly altering their protocols and switching to other, untested drugs. One death penalty expert described the situation as states “scrambling for drugs, […] changing their protocols rapidly and carelessly.” In January 2014, six executions were carried out in five states using four different protocols, including the disturbing killing of McGuire with a new drug combination. Rapidly changing protocols have resulted in states experimenting on the condemned, utilizing new drugs and dosages in an effort to find the best way to kill.
The Baze standard is inadequate to address this experimentation. The McGuire decision demonstrates the failure of the Baze test to ensure the constitutionality of state experimentation with lethal injection drugs. McGuire’s execution – worse than even his expert predicted – portrays the human experimentation as punishment that results from the lack of an adequate constitutional standard.
Human experimentation, as a violation of customary international law, is undoubtedly “unusual” in the modern world and innately cruel, a grave infringement on human dignity and a violation of the Eighth Amendment. The prohibition on non-consensual human medical experimentation has been found by U.S. courts to be customary international law and a norm that has been “firmly embedded” in U.S. law for 50 years. The International Covenant on Civil and Political Rights, which the U.S. has ratified, explicitly guarantees that “no one shall be subjected without his free consent to medical or scientific experimentation,” and the first principle of the Nuremburg code establishes that “[t]he voluntary consent of the human subject is absolutely essential” for medical experimentation. By permitting state experimentation with lethal injection drugs, the U.S. is violating a human right that it helped establish in response to the horrors of the Holocaust.
No Usual Way to Kill
As sources for lethal injection drugs continue to shrink, experimentation with new drugs and dosages to carry out executions appears inevitable. More horrific executions will likely occur as a result of this experimentation. Indeed, on April 29, 2014, the state of Oklahoma executed Clayton Lockett utilizing a new, previously unused drug combination. After an error administering the drugs, Lockett’s vein collapsed. Sixteen minutes after the execution started, Lockett began writhing in pain, apparently conscious as he attempted to get up, say “man,” and lift his head while prison officials lowered blinds to block reporters’ view of the proceedings. The execution was halted as there were not enough drugs to carry out the execution, and Lockett finally died of a heart attack 43 minutes after the execution began. No judicial test, including the Baze standard, can guarantee the constitutionality of executions when states are conducting this human experimentation.
The unconstitutionality of current lethal injection procedures requires immediate remedy before any more torturous executions are performed. Following McGuire’s execution, Ohio Governor John Kasich provided an eight-month reprieve for Gregory Lott, now scheduled to be executed November 19th, while the state conducted a review of its procedures. However, Ohio’s experimentation with death continues, as the state recently finished its official review and analysis of McGuire’s execution, and has altered its protocol to increase the sedative and painkiller dosages. Ohio’s next execution, in which this new dosage will be utilized, is scheduled for May 28th. Moratoriums on these experiments in lethal injection must be immediately established in Ohio and nationwide, and the judiciary needs to recognize experiments in lethal injection as per se unconstitutional.
Although Baze did not address the constitutionality of the death penalty generally, Justice Stevens was correct in his assessment that it is time for legislatures and the judiciary to reexamine the constitutionality of executions. The Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” There is a worldwide trend towards ending the death penalty, with 140 nations having abolished it, and the U.N. General Assembly has passed four resolutions in the past seven years calling for moratoriums on executions with a view towards abolition. Six states in six years have renounced the death penalty, and executions are at an almost record low. Any return to electrocution, gas chambers, hanging, or firing squads must be viewed as cruel and unusual in a mature society.  The shameful killings of Dennis McGuire and Clayton Lockett should serve as a catalyst for Ohioans, sister states, and U.S. courts to join the rest of the world in recognizing that the death penalty is cruel and unusual.
 U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).
 533 U.S. 35 (2008) (hereinafter Baze). The Kentucky protocol utilized a three-drug combination to kill inmates: sodium thiopental (Pentothol) is a sedative used to induce unconsciousness; pancuronium bromide (Pavulon) is a paralytic agent used to stop respiration, as
well as to preserve “the dignity of the procedure” by preventing involuntary movements caused by the potassium chloride; and potassium chloride, which is used to induce cardiac arrest. Id. at 44, 57-58. Pancuronium bromide was proscribed from being used in animal euthanasia by Kentucky legislation. Id. at 71-72 (Stevens, J., concurring).
 Id. at 41, 46 (majority opinion).
 Id. at 40, 51.
 Id. at 49-50, 63 (internal quotation marks omitted).
 Id. at 52 (internal quotation marks omitted).
 In re Ohio Execution Protocol Litig. (Document relating to Dennis McGuire), No. 2:11–cv–1016, 2014 WL 130609, at *1 (S.D. Ohio Jan. 13, 2014) (hereinafter McGuire).
 Id .
 Id. at *1, *6. The new protocol was adopted in October 2013, and utilizes midazolam and hydromorphone to kill the condemned inmate. Id. at *2.
 Id, at *1, *4.
 Id. at *4 (emphasis in original) (internal quotation marks omitted).
 Id. (emphasis in original) (internal quotation marks omitted).
 Id. at *5
 Id. at *6.
 Alan Johnson, Inmate’s Death Called ‘Horrific’ Under New, 2-drug Execution, The Columbus Dispatch, Jan. 17, 2014, available at http://www.dispatch.com/content/stories/local/2014/01/16/mcguire-execution.html.
 In Howell v. State, the Supreme Court of Florida rejected the petitioner’s argument that Baze addressed different procedural concerns than states experimenting with new drugs to execute prisoners, and, utilizing the Baze test, held such experimentation was not a violation of the Eighth Amendment. 133 So.3d 511, 516-518 (Feb. 20, 2014), cert. denied,134 S.Ct. 1376 (Feb. 26, 2014). The petitioner made a brief reference in his arguments to human experimentation being banned by international law via the Nuremburg Code. Reply in Support of Mr. Howell’s Initial Brief on Appeal at p. 7 fn. 18, Howell v. Florida, No. SC14-167(S. Ct. of Fl. Feb. 6, 2014), available at http://www.floridasupremecourt.org/pub_info/summaries/briefs/14/14-167/Filed_02-06-2014_Reply_Brief.pdf.
 See, e.g., In re Ohio Execution Protocol Litig. (Document relating to Charles Lorraine), 840 F. Supp. 2d 1044, 1046-1047, 1058-1059 (S.D. Ohio 2012) (finding petitioner had demonstrated a substantial likelihood of succeeding on claim that death penalty would violate Equal Protection Clause when State agents repeatedly deviated from protocols and lied to the court, and the State’s policy was “that the follows its written execution protocol, except when it does not.”).
 McGuire, 2014 WL 130609, at *5, *6.
 Ed Pilkington, Doctor Angry Ohio Executed Inmate Despite ‘Horror’ Warning, The Guardian, Jan. 20, 2014, available at http://www.theguardian.com/world/2014/jan/20/doctor-angry-ohio-executed-inmate-using-untried-untested-procedure-dennis-mcguire.
 McGuire, 2014 WL 130609, at *6.
 See id. at *4 (“Testimony at the hearing underscored that the experts could not counsel anyone, including the Court, on how to execute an individual; all they could do was offer opinions. Counsel argued that this handicapped McGuire a bit in presenting an alternative because the means by which to present that alternative most effectively would be to have an expert testify as to its effectiveness and why it would be preferred over Ohio’s protocol.”).
 Amel Ahmed, Supreme Court Orders Stay of Execution, Al Jazeera America, Jan. 28, 2014, http://america.aljazeera.com/articles/2014/1/28/missouri-crossesstatelinestoprocureexecutiondrug.html; see, e.g., In re Lombardi, 741 F.3d 888, 895-896 (8th Cir. Jan. 24, 2014) (en banc) (holding that, absent the petitioner proposing a more human alternative method or showing purposeful infliction of pain, condemned prisoners have no right to discover the identities of prescribing physicians or supplying pharmacies and laboratories in Eighth Amendment challenges); Sells v. Livingston, 2014 WL 1357039 (5th Cir. Apr. 7, 2014).
 See Chris Woolston, Death Row Incurs Drug Penalty, Nature, Oct. 22, 2013, http://www.nature.com/news/death-row-incurs-drug-penalty-1.13996?WT.ec_id=N. Due to these European exportation restrictions caused by states’ persistent use of medical drugs in executions, the availability of certain anesthetics used for medical purposes have been restricted and are at risk of future restrictions. See id.
 See Manny Fernandez, Executions Stall as States Seek Different Drugs, The New York Times, Nov. 8, 2013, available at http://www.nytimes.com/2013/11/09/us/executions-stall-as-states-seek-different-drugs.html.
 State by State Lethal Injection, Death Penalty Information Center, http://www.deathpenaltyinfo.org/state-lethal-injection (last accessed April 24, 2014).
 One group of medical experts has suggested that, in conducting lethal injections, states’ “use of biomedical inquiry to evaluate, modify, and ‘improve’ protocols resembles human experimentation and should be scrutinized against accepted norms for ethical conduct of research, particularly given the vulnerable nature of the prisoner population.” Leonidas G Koniaris et. al., Ethical Implications of Modifying Lethal Injection Protocols, Public Library of Science Medicine 5(6): e126 (2008), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2504038/#pmed-0050126-b015.
 Abdullahi v. Pfizer, Inc., 562 F.3d 163, 182, 183-184 (2nd Cir. 2009).
 International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., art. 7, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976). The U.S. has ratified the ICCPR, and is therefore bound by its provisions under international law. Status: International Covenant on Civil and Political Rights, UN Treaty Collection, Apr. 26, 2014, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en.
 Abdullahi, 562 F.3d at 178-179. See also World Medical Association, Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects paras 25-32 (1964), available at http://www.wma.net/en/30publications/10policies/b3/ (“[N]o individual capable of giving informed consent may be enrolled in a research study unless he or she freely agrees.”); Council for International Organizations of Medical Sciences and the World Health Organization, International Ethical Guidelines for Biomedical Research Involving Human Subjects guideline 4 (2002), available at http://www.cioms.ch/publications/layout_guide2002.pdf (“For all biomedical research involving humans the investigator must obtain the voluntary informed consent of the prospective subject. . . .”); United Nations Educational, Scientific and Cultural Organization, Universal Declaration on Bioethics and Human Rights article 6(2) (2005), available at http://unesdoc.unesco.org/images/0014/001461/146180e.pdf (“Scientific research should only be carried out with the prior, free, express and informed consent of the person concerned.”); Council of Europe, Convention For the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine article 16, ETS No. 164 (entered into force Dec. 1, 1999), available at http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm (“Research on a person may only be undertaken if all the following conditions are met: (i) there is no alternative of comparable effectiveness to research on humans; (ii) the risks which may be incurred by that person are not disproportionate to the potential benefits of the research; (iii) the research project has been approved by the competent body after independent examination of its scientific merit, including assessment of the importance of the aim of the research, and multidisciplinary review of its ethical acceptability; (iv) the persons undergoing research have been informed of their rights and the safeguards prescribed by law for their protection; (v) the necessary consent […] has been given expressly, specifically and is documented. Such consent may be freely withdrawn at any time.”).
 Chelsea J. Carter and Jason Morris, Documents: Note Enough Drugs Left to Finish Botched Oklahoma Execution, CNN, May 1, 2014, http://www.cnn.com/2014/05/01/us/oklahoma-botched-execution/index.html?hpt=us_c2. The Oklahoma Supreme Court had rejected Lockett’s challenge to Oklahoma’s secrecy provision, which prevented the disclosure of the identities of the execution team and the suppliers of the execution drugs and equipment. Id. The execution protocol used midazolam (to cause unconsciousness), vecuronium bromide (to stop respiration), and potassium chloride (to stop the heart). Id.
 Andrew Welsh-Huggins, Ohio Governor Delays Inmate’s Upcoming Execution, Associated Press, Feb. 7, 2014, http://bigstory.ap.org/article/ohio-governor-delays-inmates-upcoming-execution.
 Ohio Increases Execution Drug Levels After Row, BBC News, Apr. 28, 2014, http://www.bbc.com/news/world-us-canada-27199076.
 See Baze. 533 U.S. at 81 (Stevens, J., concurring).
 Id. at 115-116 (Ginsburg, J., dissenting) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
 Death Sentences and Executions 2013, Amnesty International, March 26, 2014, http://www.amnestyusa.org/research/reports/death-sentences-and-executions-2013.
 Ban Urges Countries to Abolish Death Penalty, Increase Transparency Surrounding Procedure, UN News Centre, June 28, 2013, http://www.un.org/apps/news/story.asp?NewsID=45305&Cr=death+penalty&Cr1#.UxO95F7lESU.
 Ed Pilkington, European Boycott of Death Penalty Drugs Lowers Rate of US Executions, the Guardian, Dec. 19, 2013, available at http://www.theguardian.com/world/2013/dec/19/death-penalty-boycott-drugs-execution-new-low.
 See Baze, 533 U.S.at 86 (Stevens, J., concurring) (“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State is patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”) (internal quotation marks omitted).