The state’s execution policy leaves open the chance an inmate could remain clinically alive even after being pronounced dead, attorneys said Thursday as they tried to stop a condemned killer from being put to death in March.
Inmates also run the risk of experiencing unnecessary pain by suffocation under the current execution policy, and Ohio is violating state and federal law by using lethal drugs without prescriptions to carry out capital punishment, the attorneys said in a federal court filing.
The attorneys want a federal judge to stop the March 19 execution of Gregory Lott and declare the state’s new execution policy unconstitutional.
There is a substantial risk that Lott’s “electrical cardiac activity and electrical brain activity will continue for as long as 45 minutes after breathing and heart sounds are undetected,” federal public defenders Stephen Ferrell and Stephen Kissinger said in the filing.
The lawsuit is the latest in a series of legal challenges to Ohio’s injection policy dating back years. It appears to be the first time attorneys have alleged inmates aren’t dead despite a warden’s declaration.
The lawsuit follows last week’s execution of Dennis McGuire by the new two-drug method combining the sedative midazolam with the painkiller hydromorphone. Ohio adopted the system after supplies of its previous execution drug dried up.
McGuire, 53, was sentenced to death for raping and killing a pregnant newlywed in 1989. He repeatedly snorted, gasped and opened and shut his mouth as if yawning over several minutes, though he appeared unconscious the entire time. His 26-minute execution was the longest since Ohio resumed putting inmates to death in 1999.
The lawsuit alleges McGuire could have remained clinically alive 45 minutes after his official time of death.
Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith said the agency doesn’t comment on pending lawsuits.
Lott was sentenced to die for killing 82-year-old John McGrath by setting him on fire in his East Cleveland home in 1986. McGrath died in the hospital 11 days after the fire.