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, U.S. 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 U.S. Court of Appeals for the District of Columbia Circuit threw out Chutkan’s order with little explanation.
Nelson’s crime was horrific by any measure.
Then in his mid-20s, Nelson grabbed 10-year-old Pamela Butler off the street and threw her into his truck in broad daylight on Oct. 12, 1999. The fifth-grade student had been returning to her Kansas City, Kansas, home on inline skates after buying cookies at a store. As he drove off, he made a rude gesture to Butler’s sister, who saw the attack and screamed. Onlookers got his license plate number.
Nelson, who didn’t previously know Butler or her family, told a co-worker a month earlier he planned to find a female to kidnap, torture, rape and kill because he expected to go back to prison anyway on other charges, prosecutors said.
In a 2018 ruling, the 8th U.S. Circuit Court of Appeals said Nelson showed no remorse during a sentencing hearing statement and instead “blistered the district court and the victim’s family with a profanity laden tirade.”
Butler’s mother, Cherri West, hoped Nelson’s execution would bring her some peace after living for decades with the torment of her daughter’s final hours.
“To know that that was the last face that she saw on this earth before he took her, and having to know how scared she was and what he was doing to her, has literally eaten me up.”