The scheduled federal execution of a 10-year-old Kansas girl's killer was back on track Friday after an appellate panel tossed a lower court's ruling that would have required the government to get a drug prescription before it could use pentobarbital to kill the inmate.
Questions about whether pentobarbital causes pain prior to death has been a focus of last-minute appeals for Keith Nelson, who would be the fifth person to die this year and the second this week in the Trump administration's resumption of federal executions after a 17-year hiatus.
All the executions by lethal pentobarbital injection have been carried out at a federal prison in Terre Haute, Indiana.
If Nelson's lawyer appeals Friday to the Supreme Court on the prescription issue, the decision on whether Nelson lives or dies Friday could still come down to the high court. But similar moves to delay three other executions last month failed, with the high court ruling 5-to-4 allow them to proceed.
A flurry of filing by Nelson's legal team over several weeks zeroed in on pentobarbital, a barbiturate that depresses the central nervous system and, in high doses, eventually stops the heart.
In one filing in early August, attorneys for the 45-year-old Nelson cited an unofficial autopsy on one inmate executed last month, William Purkey, saying it indicated evidence of pulmonary edema in which the lungs fill with fluid and causes a painful sensation akin to drowning.
In her now-overturned ruling, US District Judge Tanya Chutkan halted Nelson's execution early Thursday, saying laws regulating drugs require the prescriptions, even for executions. Government attorneys appealed and within hours a panel at the US Court of Appeals for the District of Columbia Circuit threw out Chutkan's order with little explanation.
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