In an opinion early Thursday, U.S. District Judge Tanya Chutkan said a federal law that regulates drugs requires the government to get a prescription for the lethal injection drug pentobarbital, which it plans to use.
But in a brief, unsigned order Thursday evening, the panel of three appeals court judges acted to let the execution go forward, saying "there are insufficient findings and conclusions that irreparable injury will result from the statutory violation found by the district court." The panel included two judges appointed by President Barack Obama, Cornelia Pillard and Robert Wilkins, and Neomi Rao, who was appointed by President Donald Trump.
Nelson attorney Dale Baich in an email to The Associated Press: “We are carefully reviewing the order and considering the options available to us.” Nelson's execution is scheduled to be the fifth carried out this year by the federal government at the death chamber of the federal prison in Terre Haute, Indiana. The executions followed the Trump administration's announcement last year that it would resume executing death row inmates for the first time since 2003.
Nelson was sentenced to death after pleading guilty to the 1999 kidnapping, rape and killing of Pamela Butler. The 10-year-old was rollerblading in front of her Kansas home when Nelson abducted her. He later raped her before strangling her to death with a wire.
Chutkan's 13-page opinion putting Nelson's execution on hold came hours after the government carried out the execution of Lezmond Mitchell, the only Native American on federal death row, despite objections from many Navajo leaders. With Mitchell's execution, the federal government has now carried out more executions in 2020 than it had in the previous 56 years combined. Two more executions are scheduled for September. All of the executions have been carried out using pentobarbital.
Though the inmates who were put to death by the federal government have sought to halt their executions, challenging the drug's use, among other things, the Supreme Court has sided with federal officials, in two cases reversing lower court orders keeping the government from carrying out scheduled executions.
Chutkan, who was nominated by President Barack Obama, said in her opinion that it is “undisputed that a prescription is required to dispense pentobarbital in the ordinary course.” “It is also undisputed,” she wrote, "that the government has not obtained a prescription — nor does it intend to — for the use of pentobarbital in Nelson's execution.”
But Chutkan said that under previous court decisions, when pentobarbital is being used for an execution it is still subject to the requirements in the Food, Drug, and Cosmetic Act so a prescription is required.
The government has argued that pentobarbital is not subject to the act when used for lethal injections. Pentobarbital depresses the central nervous system and, given in a high dosage, causes the heart to stop. It doesn’t have widespread medical uses, though is often used by veterinarians to anesthetize or euthanize animals.
For three federal executions in the early 2000s, the government used different drugs, but pharmaceutical companies later refused to allow those drugs to be used in executions, forcing the federal and many state governments to seek an alternative. Attorney General William Barr last year approved reworked execution protocols that called for using pentobarbital alone.
Associated Press reporter Michael Tarm contributed to this report from Terre Haute, Indiana.