Time running out for Oklahoma's execution drugs

The state's execution chamber has not been active in nearly two years. (KOKH/File Photo)

In just two months it will have been two years since the state of Oklahoma executed a condemned prisoner. FOX 25 has learned it may be nearly impossible for the state to resume lethal injections as it has done in the past.

Lethal injection drugs are in high demand, but short supply and some of Oklahoma’s supply of death penalty drugs is about to expire.

“Midazolam may have a shelf life of two years or three years depending on the batch that is manufactured,” said Dale Baich, a federal public defender who represents Oklahoma inmates challenging their executions.

“We're not aware of any state that has carried out executions that have used expired drugs,” Baich said in reaction to a FOX 25 analysis that shows the clock ticking on the state’s execution cocktail.

The Oklahoma Department of Corrections will not tell us the expiration dates of the drugs they have purchased. However, according to the multi-county grand jury investigation into the state’s failure to correctly carry out executions, the state ordered midazolam in November of 2014, and re-ordered in January of 2015.

Attorney General Scott Pruitt has promised not to seek new execution dates until 5 months after the DOC creates and adopts new execution protocols.

This means if the state had purchased fresh off the line midazolam in January 2015, the max three year shelf life would be up in January 2018. Applying that same condition to the November 2014 purchase would mean the drugs would expire in November 2017. However, corrections officials in Arkansas (a state with similar drug secrecy laws) told FOX 25 it last purchased midazolam shortly before Oklahoma’s first purchase and its supply expires in April 2017.

According to the grand jury documents the state's last purchase of rocuronium bromide, the second of the three-drug cocktail, was last purchased in November 2014. This drug also has a three year shelf life, which means its shelf life is, at most, November of 2017.

Added to those soon-to-expire drugs is the issue surrounding the drug that led to the grand jury investigation, potassium acetate. This drug was used in the Charles Warner execution and nearly used in Richard Glossip’s execution. The governor’s general counsel told the Attorney General’s office to “Google it” in an effort to continue with Glossip’s execution even though potassium acetate was not an approved drug. Testimony before the grand jury revealed acetate was received because potassium chloride, the approved fatal drug, was unavailable.

Injectable potassium chloride, which the state’s current lethal injection protocol calls for, is part of a nation-wide shortage, even for those seeking it for medical purposes.

“I think that when it comes to using this drug for executions, the drug should be used to help people rather than to kill people especially if there is a shortage,” Baich argues.

The Corrections Department told FOX 25 it has not made any effort to secure potassium chloride since Glossip’s last attempted execution.

To help alleviate some of the problems faced by drug purchases and mix-ups the legislature passed a new law to allow the DOC to store prescription drugs, including execution drugs on site at prisons. The DOC said the law was also changed in order to allow prisons easier access to medications needed to provide life-saving medications to inmates.

The Oklahoma Bureau of Narcotics told FOX 25 as of November 1, the DOC has had the option to file paperwork in order to get this permission. As of the publishing of this story that paperwork has not been filed.

The DOC told FOX 25 it has not started the preparing protocols for the state’s legally prescribed backup execution method, nitrogen hypoxia. However, the agency confirmed they received an advertisement from a company promising pain free and mistake free executions using nitrogen gas.

The company, Pima Air Tech registered in Tucson, Arizona, told FOX 25 it sent a letter to the Oklahoma DOC advertising its “patent pending” death penalty alternative, the “Euthypoxia Chamber.”

The letter says the company does not advocate for the death penalty, but does offer options for states that carry out capital punishment. The chamber promises to be “totally fool-proof and totally fail-safe.” It also “Guaranties the demise of any mammalian life within 4 minutes.”

The Oklahoma DOC told FOX 25 it has not exchanged correspondence with the company. However, records indicate the agency already has a purchasing relationship with a Tulsa company to provide various gases for medical and mechanical purchases. The purchase orders do not show the DOC buying any nitrogen gas. Whether or not the company, which is owned by a corporation based in France, would supply gas for executions is not known.

Baich says nitrogen gas, since it has never been used before in human executions, is not necessarily a simple prospect. First, it would face legal challenges that could again land Oklahoma’s executions before the Supreme Court. It could also pose technical challenges in carrying out an execution that only effects the condemned inmate.

“By using nitrogen, prison staff, witnesses and others could be subject to the toxic effect of nitrogen,” Baich said.

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