Christa Pike survived execution: can Tennessee try again?

In late September, the execution of 50-year-old Christa Pike failed in Tennessee: she survived two lethal doses of pentobarbital and was taken to hospital. The US is now debating whether another attempt to execute her is permissible. “How could this happen? This should be easy to do. It shouldn’t be particularly difficult,” Donald Trump said of the case. But analysts say his surprise is misplaced: lethal injection is far less reliable than it appears.

Injection fails more often than any other method

Of all the methods used by American justice, botched executions have occurred most often with lethal injection. An analysis of executions from 1890 to 2010 shows problems in more than seven percent of cases. As recently as 2022, serious complications accompanied seven of twenty executions carried out this way: sometimes a catheter could not be placed, sometimes the procedure dragged on for hours. Botched executions do not usually end with the prisoner surviving; they lead to a slower and more agonizing death.

The health of Pike, who was convicted of the brutal murder and torture of a schoolmate in 1995, remains uncertain, but the latest reports point to improvement: over the weekend she was moved from the hospital, under medical supervision, to a women’s prison in Nashville, and she appears to be able to walk and eat on her own. Tennessee’s Republican governor Bill Lee has suspended further executions and ordered a review of what happened. Pike’s fate has not yet been decided.

What the precedents say

The law here rests on two provisions of the US Constitution: the Fifth Amendment, which bars putting a person in jeopardy of losing their life twice for the same offense, and the Eighth, which prohibits cruel and unusual punishment. Neither has a clear-cut interpretation.

In 1946 in Louisiana, officials tried to execute 17-year-old Willie Francis in the electric chair, but instead of dying he suffered excruciating pain and the execution was halted. The authorities decided to repeat it. In January 1947 the Supreme Court, by five votes to four, allowed this, treating the first attempt as an unfortunate, unintentional technical malfunction. Justice Harold Burton, who dissented, asked how many deliberate repetitions of the current it would take for the punishment to become cruel and unconstitutional. Francis was executed in May 1947. It is unknown whether the Supreme Court would reach the same decision today.

Another case is Romell Broom of Ohio. In 2009, executioners spent two hours and at least eighteen needle sticks failing to find a vein; Broom cried out in pain and the execution was called off. In 2016 the Ohio Supreme Court ruled, by four votes to three, that the execution could be repeated: in the court’s view, an execution begins when the lethal substance enters the intravenous line, and that had not happened. Broom died in prison in December 2020, probably from complications of coronavirus.

Pike, however, was given pentobarbital twice. Her defenders had warned of a blood disorder and hard-to-access veins and proposed another method, such as a catheter in a large vein in the neck, or hanging, but the court rejected the objections. In 2019 the Supreme Court denied Russell Bucklew’s appeal, saying the Eighth Amendment “does not guarantee a prisoner a painless death.” The difference is that Bucklew’s fears concerned a future execution, whereas in Pike’s case the complications have already occurred.

Uncharted legal territory

According to Jordan Steiker, a law professor at the University of Texas, a second attempt would be “uncharted legal territory.” He believes the deciding factor should be whether society today would find a second attempt repugnant. The most obvious way to avoid legal disputes, he says, is for the governor to commute the sentence.

Europe has abandoned the death penalty; American law retains it. But the dispute is now about something else: an execution that was meant to end a life once and for all has become an unfinished process and has drawn Pike into a legal battle over technical details. As the Supreme Court said in its 1958 decision, the basis of the Eighth Amendment is nothing less than human dignity.

Around Prague, based on reporting by seznamzpravy.cz