The federal execution of a convicted murderer who kidnapped and killed a 10-year-old girl is scheduled to proceed on Friday after a late ruling by an appeals court.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned a preliminary injunction issued by a lower court in a brief order on Thursday, saying that there were “insufficient findings and conclusions” in blocking the execution of Keith Dwayne Nelson.
Earlier on Thursday, U.S. District Judge Tanya Chutkan halted Nelson’s execution, saying that the government needed to comply with the requirements of a federal law that regulates drugs before they can carry out the execution.
Chutkan ruled that the government needed to obtain a prescription for the use of pentobarbital, the drug to be used in the lethal injection, in order to meet the requirements of that law.
“The government’s failure to acquire a prescription for the use of pentobarbital in Nelson’s execution is contrary to law and thereby violates the [Administrative Procedure Act],” Chutkan wrote (pdf).
Nelson kidnapped 10-year-old Pamela Butler who was rollerblading in front of her Kansas home and raped her in a forest behind a church before strangling the young girl to death with a wire. He is currently scheduled to die by lethal injection later Friday at Terre Haute, Indiana.
“The ruling basically allows the government to pick and choose when it will follow the law,” Dale Baich, one of Nelson’s lawyers, told media outlets.
It is unclear whether Nelson’s legal team would appeal to the Supreme Court, but on Friday morning they asked the federal district court to either clarify or amend the order that was dismissed or issue a new permanent injunction.
His legal team continued to argue that Nelson would suffer “irreparable injury” with the use of pentobarbital and the lack of a prescription.
“Mr. Nelson faces irreparable injury if executed with the administration of a drug both without the benefit of prescription (and thus physician involvement) and without the benefit of using an approved (not compounded) drug–and the labeling, approval and manufacturing quality requirements that apply to approved drugs–including, among other things, a scientifically established expiration date,” the lawyers wrote in their motion (pdf).
Attorney General William Barr announced in July 2019 that they were resuming federal executions and that they were replacing a three-drug procedure that had been used in federal executions with a single drug, pentobarbital.
The drug and the method of federal executions have been the subject of multiple lawsuits.
Despite the last-minute fights, the federal government successfully carried out three federal executions in July and one earlier this week.
Isabel Van Brugen and Reuters contributed to this report.