Child Killer Executed

The U.S. Department of Justice announced that the execution of Keith Nelson was completed today, and he was pronounced dead at 4:32 pm EDT.

In October 1999, Nelson told an acquaintance that he wanted to kidnap, rape, torture, and kill a young girl he had seen in Kansas City, Kansas.  Shortly thereafter, Nelson parked his white pickup truck outside the home of 10-year-old Pamela Butler, who was rollerblading nearby.  As Pamela skated by the truck, Nelson grabbed her around the waist, threw her into the truck, and sped away as Pamela’s sisters looked on in terror.  Sometime later that day, Nelson raped Pamela, strangled her to death with a wire, and buried her in a forest behind a church in Kansas City, Missouri.  In October 2001, Nelson pleaded guilty to the kidnapping and unlawful interstate transportation of a child for the purpose of sexual abuse resulting in death, and the district court, consistent with a federal jury’s recommendation, later sentenced him to death.  His conviction and sentence were affirmed on appeal, and his claims for collateral relief were denied by every court that considered them.

More than two decades after viciously taking the life of Pamela Butler, causing untold devastation to those who loved her, Nelson finally faced the justice he deserved.  Family members of Pamela Butler, including her mother, attended the execution and witnessed implementation of the sentence for Nelson’s horrific crime.

On Wednesday I noted that the D.C. Circuit Court of Appeals had denied a stay after the district judge had also denied one. But then yesterday, the day before the scheduled execution, the district judge issued yet another injunction, this one based on the claim that the Food, Drug, and Cosmetic Act requires a doctor’s prescription for a lethal injection, which obviously no doctor is going to give.

This decision is an extrapolation from the D.C. Circuit’s very wrong decision in Cook v. FDA, the decision that stopped states from importing their execution drugs. By its terms, Cook is limited to the FDA’s duty to enforce the importation section of the FDCA. The Supreme Court in Heckler v. Cheney came to the opposite conclusion regarding domestic drugs. Neither one requires a prescription. Later yesterday, the D.C. Circuit issued this order:

ORDERED that the motion be granted and that the permanent injunction be vacated, as it fails to comply with Fed. R. Civ. P. 65(d) in that, inter alia, there are insufficient findings and conclusions that irreparable injury will result from the statutory violation found by the district court. See, e.g., eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Withrow v. Larkin, 421 U.S. 35, 44-45 (1975).

That is, the objection Nelson raised is not really one that does him any harm. He is just as dead whether there is a prescription or not. What he really wanted was to exploit the FDCA to prevent the execution altogether.

But the decision in the case was issued for all plaintiffs, not just Nelson, so it is not moot. This may be an opportunity to finally get a reconsideration of Cook by the D.C. Circuit en banc or by the Supreme Court. Let us hope so.