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 to execute Keith Dwayne Nelson. The government is appealing.
Nelson's execution was 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.
Chutkan's 13-page opinion 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.
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 court hereby enjoins Defendants from executing Keith Nelson until they have met the requirements of the FDCA,” Chutkan wrote.
The government has argued that pentobarbital is not subject to the act when used for lethal injections. It did not immediately respond to an email seeking comment before business hours Thursday.
Nelson pleaded guilty in 2001 and was sentenced to death in 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.