Judge Blocks Federal Execution for the 3rd Time; Justice Dep’t Appeals

WASHINGTON (CN) — For the third time this summer, a Washington federal judge intervened Thursday to block the U.S. government’s execution of an inmate by lethal injection.

Keith Nelson, who pleaded guilty to kidnapping, raping and murdering a 10-year-old Kansas girl, secured his injunction only hours after the government executed the only Native American on federal death row, Lezmond Mitchell.

The Justice Department immediately appealed U.S. District Judge Tanya S. Chutkan’s ruling, which says the government must first acquire a prescription for the lethal injection drug pentobarbital it plans to use to execute Nelson on Friday.

“It is undisputed that a prescription is required to dispense pentobarbital in the ordinary course,” Chutkan wrote in a 13-page opinion. “It is also undisputed that the government has not obtained a prescription — nor does it intend to — for the use of pentobarbital in Nelson’s execution.”

An Obama appointee, Chutkan similarly halted two federal executions last month just hours out, crediting the inmates’ claims that the newly adopted federal execution protocol violates the Eighth Amendment. 

Though the D.C. Circuit had upheld Chutkan’s decision, the Supreme Court cleared the way for the execution of three inmates in July with a 5-4 reversal at the eleventh hour.

Nelson’s execution is set to be the fifth this summer, all carried out in the federal prison in Terre Haute, Indiana. The Justice Department announced earlier this year that it would return to executing death row inmates for the first time since 2003.

The lineup of death sentences from July into the autumn drew criticism of President Donald Trump using the capital cases to promote his campaign mantle of “law and order.” 

Like Mitchell, who was put to death Wednesday evening, the three inmates executed last month were found guilty of committing gruesome crimes that included child victims. 

With the execution of Mitchell, a member of the Navajo Nation, the federal government has executed more federal inmates in the last two months than in the last 56 years combined. 

The Navajo Nation had strongly objected to the execution, calling it an affront to their sovereignty, while the Trump administration argued that “justice finally has been served.”

Passed down just after midnight Thursday, the latest injunction swung on the government’s failure to comply with the Federal Food, Drug and Cosmetic Act. 

Chutkan determined that, based on D.C. Circuit precedent on the federal drug law, the Justice Department’s failure to have a prescription in hand for pentobarbital left them outside of compliance with the Administrative Procedure Act. 

“Thus, 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 APA,” the judge wrote. 

The Trump administration has argued it does not need a prescription under the federal drug law. The Justice Department declined to comment on Thursday's ruling.

With its rapid appeal of the injunction, however, the government tees up another execution for the Supreme Court to decide in the coming days.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit