WASHINGTON (CN) — The Trump administration can carry out its fifth federal execution of the summer after the federal judge who earlier this week granted the inmate an injunction reconsidered such relief Friday.
U.S. District Judge Tanya S. Chutkan declined to grant a second injunction after oral arguments this afternoon, issuing her opinion less than two hours before the government is set to kill Keith Nelson by lethal injection.
“Ultimately, Nelson bears the burden of demonstrating irreparable harm and he has not convincingly done so,” the 3-page order states.
Nelson, who pleaded guilty in 2001 to kidnapping, raping and murdering a 10-year-old Kansas girl, hinged his challenge on the government’s plan to execute him using pentobarbital without a prescription, saying the drug was not subject to quality requirements that apply to approved drugs under the Federal Food, Drug and Cosmetic Act.
His execution marks the second this week of a federal inmate after the Supreme Court on Wednesday refused to stop the execution of Lezmond Mitchell, the only Native American on federal death row. The Trump administration executed three other inmates last month, after the prisoners’ Eighth Amendment claims against newly adopted federal execution protocol failed 5-4 before the high court.
During an emergency teleconference hearing in Nelson’s case Friday morning, attorney James K. Stronski said the government would commit irreparable harm — the threshold required to grant injunctive relief is irreparable harm — if it executed Nelson using pentobarbital without a prescription, when the drug is not federally regulated.
“The point is that they are making an unapproved drug, mixing it up, and then it sits on a shelf under conditions that are unspecific for up to a year,” Stronski said.
Given the precedent that the Supreme Court set last month in Barr v. Lee, however, Chutkan appeared skeptical from the outset that she could offer any relief.
“How do you square that argument with the fact that the Supreme Court has now in the last six weeks allowed four executions to take place using this form of pentobarbital?” Chutkan asked during the Friday hearing.
Attorneys for Nelson said he could suffer extreme pain and needless suffering if injected with pentobarbital, produced in so-called compounding pharmacies that mix the drugs that the government purchases for executions.
They also presented photos to support their claim that the government used vials of expired pentobarbital in two July executions, and planned to do the same on Friday.
Flatly rejected by the Justice Department, the claim failed to convince the judge.
“The government has asserted, and I have no reason to doubt their assertion, that they’re not using an expired drug,” Chutkan said.
Justice Department attorney Jean Lin sought to reassure the judge that the government follows its own guidelines for regulating pentobarbital, and argued Nelson had presented no evidence that the dose intended for his execution is subpotent.
“The government should be presumed to be acting in good faith,” Lin said.
Going on to call it “abundantly clear” that the drug is safe, unexpired and tested for quality assurance, Lin stressed that the Supreme Court had allowed four executions to proceed with the same lethal injection.
The government further rejected Nelson’s claims that the drug must adhere to federal regulations to ensure the drug is “safe and effective for its intended use.”
“That is incorrect in the death penalty context, where the ‘intended use’ is actually to kill the ‘patient’ — i.e., the drug has certainly not ‘function[ing] as intended’ unless Nelson dies,” the Justice Department said in a Friday morning opposition brief.
Nelson’s attorneys first sought a stay of execution based on autopsy findings that Wesley Ira Purkey, executed on July 16, suffered extreme pain before succumbing to lethal injection. The D.C. Circuit overturned Chutkan’s initial injunction on Thursday.
It was also Chutkan, an Obama appointee, who granted injunctive relief blocking last month’s executions before the narrowly divided Supreme Court reversed her.
On Friday, Nelson’s arguments left her unswayed.
“In light of this dispute, a showing of irreparable harm is far from ‘certain,’” the judge wrote, concluding: “Thus, Nelson is unable to make the requisite showing ‘required to justify last-minute intervention by a Federal Court.’”
Set to be executed Friday at 4 p.m., Nelson likely began making his way to the death chamber about 30 minutes before Chutkan issued her ruling.
Nelson will be executed in the same death chamber where Purkey, Mitchell and the other two prisoners executed in July died, at a federal prison in Terre Haute, Indiana.
The Justice Department has scheduled two more federal executions for September. The lineup has led critics to question whether carrying out the death sentences is a political strategy by President Donald Trump as he campaigns on a “law and order” mantle.
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