The botched execution of Tennessee death row inmate Christa Pike has thrust Tennessee’s criminal justice system into uncharted territory.
After state officials administered two lethal doses of the drug pentobarbital on 30 September, Pike survived and was transported to a nearby hospital, where she was intubated. Six days later, her lawyers announced she was “conscious and speaking”.
Tennessee Governor Bill Lee has ordered an independent investigation into what went wrong at the Riverbend Maximum Security Institution in Nashville and suspended all executions for the rest of the year.
The fate of Pike, who has been on death row for 30 years for murdering Colleen Slemmer, now lies in a mysterious grey area.
Doctor Joel Zivot, an anesthesiologist retained by Pike’s defence team, says he suspects the deadly chemical spread under her skin instead of her bloodstream, and, because of the the large dose, it could take days or even weeks for a clear picture of her health to emerge.
At a hearing on Wednesday, an attorney for Tennessee said the decision on scheduling a new execution date was up to the state’s supreme court.
Pike’s lawyers are seeking to have Pike’s death sentence commuted to a lesser punishment of life in prison without parole. Lee, who has the power to pardon Pike or commute her sentence, has not indicated what the state will do in her case.
The BBC spoke to multiple experts to explore what could happen next.
Attempt to execute Pike by lethal injection again
The Tennessee Department of Correction could attempt to execute Pike again by lethal injection, but the state would very likely run into legal challenges based on constitutional protections against cruel and unusual punishment.
“For the state to attempt to execute her again using the same methodology, they would have severe legal hurdles,” Tennessee-based defence attorney Stephen Ross Johnson said.
Johnson said Tennessee had botched two executions in one year – it also failed to kill Tony Carruthers in May – which could give lawyers the grounds to argue broadly against the constitutionality of the state’s lethal injection protocol.
Pike’s lawyers could also argue a lethal injection is what Johnson called “unconstitutional as applied”, meaning it is cruel and unusual specifically for Pike, due to her medical condition.
Pike’s lawyers had warned before the execution attempt that she has small veins and thrombocytosis, a blood-clotting condition that would complicate the procedure.
Her medical condition combined with the state’s botched execution would make it difficult for Tennessee to present a convincing legal argument for attempting lethal injection again, Johnson said.
Attempt to execute her with a different method
But Johnson, president-elect of the National Association of Criminal Defense Lawyers, could see the state attempting an execution by a different method.
This would require “additional legal hoops”, including approval from the governor’s office and potentially the state legislature.
Since Pike’s survival, political leaders in Tennessee have called for moving her death sentence forward through other means.
Senator Marsha Blackburn, the Republican candidate for governor in next month’s election, said: “Bring back the electric chair.”
Congressman Tim Burchett, posted on social media that he’s already filed a bill to “bring back hanging”.
Tennessee could be allowed to use the electric chair because Pike committed the murder in 1995 before the state changed its execution laws.
She would need to waive her right to lethal injection in writing, which means it would have to be her decision, Vanderbilt University law professor Chris Slobogin said.
Given Pike’s exact medical state is unknown, Slobogin said there is a scenario where the state could be blocked from attempting to execute her again, regardless of method.
It is also considered cruel and unusual punishment to execute someone who is mentally incapable of understanding why it is happening, he explained.
Historically this has applied to prisoners with dementia or psychosis, but experts have said there is a chance that Pike has suffered brain damage.
Commute her sentence
Tennessee is taking a long pause on carrying out capital punishment.
Only one person was due to be executed this year after Pike, which the governor has now postponed. Earlier, in May, the Carruthers execution was suspended by a year after state officials could not find a vein to administer the lethal injection.
That means it will likely take a while for any movement in Pike’s case.
“At a minimum there’s going to be some significant delay while this issue is studied by the state”, defence attorney Johnson said, adding Pike’s health would also need to be studied.
Slobogin suspects the governor will commute her sentence, especially if missteps by state officials are uncovered in the investigation he has ordered.
“If the investigation, in any way, shape, or form, suggests that the protocol was not followed, or is hard to carry out, that might be the easy way for him to go, given the complications with the execution and all the bad press,” he said.
There is legal precedent for a death sentence to be commuted due to a botched execution combined with an inmate’s poor medical state.
The execution of Alabama death-row prisoner Doyle Hamm was called off after more than two hours of attempts to establish an IV line failed.
The state gave up on executing him following a legal settlement that related, in part, to his health. He later died of natural causes.
By BBC News
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