Nov. 18 (UPI) -- A federal appeals court on Wednesday ruled that though it has concerns with the federal government's lethal injection protocol, it won't intervene in the next two executions, including one Thursday.
The District of Columbia U.S. Circuit Court of Appeals said U.S. District Judge Tanya Chutkan was wrong to deny a challenge brought by 13 death row prisoners earlier this year.
The inmates' lawyers argued that the lethal injection drug the federal government uses, pentobarbital, causes an inmate to feel as though they're drowning while still conscious. This, they said, violates the Eighth Amendment, which protects inmates against cruel and unusual punishment.
Defense lawyers said pentobarbital should be paired with a pain-relieving drug such as fentanyl.
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The Justice Department argued the condition -- known as flash pulmonary edema -- doesn't set in until after the inmate is already unconscious.
The appeals court on Wednesday said the government should have obtained a prescription for pentobarbital as required under the Food Drug and Cosmetic Act.
"It is the government's prerogative to execute the plaintiffs by a method of its choosing," Judge Cornelia Pillard, a member of the appellate court, wrote. "Bit if it elects a method subject to statutory requirements, the government must then abide by those requirements.
She compared lethal injection to execution by firing square.
"If a federal statute required that members of a firing squad first be certified marksmen, the government could not execute a death row inmate until it ensured that the members of its firing squad were so certified," Pillard wrote.
The federal government has scheduled three executions to be carried out before the inauguration of President-elect Joe Biden. Some critics, including Democrats in Congress, have called for the Trump administration to halt those executions and leave them for the next administration to handle.
The Death Penalty Information Center said a federal execution hasn't been carried out during a lame-duck presidency since 1880 under the administration of President Grover Cleveland -- that of Richard Smith.
The Justice Department has executed seven death row inmates since July, when it resumed federal executions after a 17-year hiatus. Orlando Hall is scheduled to be put to death Thursday, while Lisa Montgomery is set to die Dec. 8 and Brandon Bernard on Dec. 10.
Both Hall and Bernard were listed as plaintiffs in the case ruled on by the D.C. appeals court Wednesday.
