By Jonathan Allen
(Reuters) – The U.S. government was due to execute Keith Nelson, a convicted child murderer, on Friday afternoon in what would be its fifth execution since it resumed carrying out capital punishment this summer after a 17-year hiatus.
The execution was scheduled to take place at 4 p.m. (2000 GMT) at the U.S. Department of Justice’s execution chamber in Terre Haute, Indiana, using lethal injections of pentobarbital, a powerful barbiturate.
On Thursday, a federal judge overseeing legal challenges to the execution protocol by Nelson and other death row inmates ruled that the Justice Department’s protocol violated drug safety laws.
Judge Tanya Chutkan of the U.S. District Court in Washington ordered Nelson’s execution be delayed until the Justice Department revised its protocol to comply with the Food, Drug, and Cosmetic Act, including a requirement that a drug can only be issued on a clinician’s prescription.
The Justice Department challenged the injunction delaying the execution in the U.S. Appeals Court for the District of Columbia Circuit. The appeals court overturned the injunction on Thursday evening, ruling that Chutkan had not established that violations of the act constituted “irreparable harm.”
Chutkan spoke with lawyers representing Nelson and the Justice Department in a telephone conference on Friday as she considered a request by Nelson’s lawyers to revise her order or issue a new one blocking Friday’s execution.
Nelson, who was convicted of raping and murdering 10-year-old Pamela Butler in Kansas in 1999, is one of more than a dozen inmates on federal death row in Terre Haute, Indiana, who sued the Justice Department over its lethal injection protocol, which was announced in 2019, replacing the old three-drug protocol last used in 2003.
Three of those plaintiffs have since been executed by the Justice Department after the U.S. Supreme Court swiftly dismissed earlier injunctions issued by Chutkan delaying the executions to allow the litigation to proceed.