Oklahoma Announces Plans to Execute Prisoners with Nitrogen Gas

At a news con­fer­ence on March 14, Oklahoma Attorney General Mike Hunter and Corrections Director Joe M. Allbaugh announced that the state plans to switch its method of exe­cu­tion from lethal injec­tion to nitro­gen gas asphyxiation. 

Attorney General Hunter said the move to nitro­gen hypox­ia was nec­es­sary ​“because of the well-doc­u­ment­ed fact that states across the coun­try are strug­gling to find the prop­er drugs to per­form exe­cu­tions by lethal injec­tion.” ​“Oklahoma,” he said, ​“is no exception.” 

No state has ever car­ried out an exe­cu­tion with nitro­gen gas, and the ACLU of Oklahoma and lawyers for the state’s death-row pris­on­ers critized the new exe­cu­tion plan as ​“exper­i­men­tal.” Dale Baich, an assis­tant fed­er­al defend­er who is rep­re­sent­ing 20 Oklahoma death-row pris­on­ers in a chal­lenge to the state’s exe­cu­tion process, cau­tioned that ​“Oklahoma is once again ask­ing us to trust it as offi­cials ​‘learn-on-the-job’ through a new exe­cu­tion pro­ce­dure and method. How can we trust Oklahoma to get this right when the state’s recent his­to­ry reveals a cul­ture of care­less­ness and mis­takes in executions?” 

In 2015, Oklahoma leg­is­la­tors autho­rized the use of nitro­gen gas as a back­up method of exe­cu­tion should lethal injec­tion be declared uncon­sti­tu­tion­al or unavail­able. State offi­cials said the change is a response to the unavail­abil­i­ty of exe­cu­tion drugs, although there has been no judi­cial dec­la­ra­tion on that issue. ​“Trying to find alter­na­tive com­pounds or some­one with pre­scrib­ing author­i­ty will­ing to pro­vide us with the drugs is becom­ing exceed­ing­ly dif­fi­cult, and we will not attempt to obtain the drugs ille­gal­ly,” Allbaugh said. 

Oklahoma botched the exe­cu­tion of Clayton Lockett in April 2014, the first time the state had attempt­ed to use the con­tro­ver­sial drug mida­zo­lam. Lockett died of a heart attack short­ly after the state halt­ed the pro­ce­dure and delayed the exe­cu­tion of Charles Warner, which it had sched­uled for the same night. The state exe­cut­ed Warner on January 15, 2015 — the last exe­cu­tion car­ried out in the state — using a drug that was not autho­rized in the state’s exe­cu­tion pro­to­col. Executions have been on hold since October 2015, after Richard Glossip was grant­ed a last-minute stay when the state again obtained the wrong execution drug. 

A grand jury report on Warner’s exe­cu­tion and Glossip’s near-exe­cu­tion called the actions of prison offi­cials, ​“care­less,” ​“neg­li­gent,” and ​“reck­less,” and said the state’s ​“para­noia” about keep­ing exe­cu­tion infor­ma­tion secret had caused cor­rec­tions per­son­nel ​“to bla­tant­ly vio­late their own poli­cies.” Following the mis­han­dled exe­cu­tions, the inde­pen­dent bipar­ti­san Oklahoma Death Penalty Review Commission spent more than a year study­ing Oklahoma’s cap­i­tal pun­ish­ment prac­tices and unan­i­mous­ly rec­om­mend­ed that the state halt all exe­cu­tions ​“until sig­nif­i­cant reforms are accomplished.” 

ACLU of Oklahoma Executive Director Ryan Kiesel said the com­mis­sion report ​“paint[s] a pic­ture of a sys­tem that fails at mul­ti­ple points to pro­vide the nec­es­sary safe­guards” to pro­tect the inno­cent and ensure fair tri­als. He said the state’s attempt to restart exe­cu­tions with­out address­ing the 46 rec­om­men­da­tions made by the com­mis­sion was ​“deeply troubling.” 

The Department of Corrections has not yet writ­ten a pro­to­col for how it will car­ry out exe­cu­tions using nitro­gen gas, but Allbaugh indi­cat­ed that he expect­ed the pro­to­col to be ready with­in 90 to 120 days. Under the terms of an agree­ment in the fed­er­al chal­lenge to Oklahoma’s exe­cu­tion process, Oklahoma may not seek to car­ry out exe­cu­tions for at least five months after adopt­ing a new protocol.