Tennessee weighs execution options after Pike survives lethal injection

Governor suspends all state executions through year

Christa Pike, on Tennessee’s death row for 30 years for the 1995 murder of Colleen Slemmer, is “conscious and speaking” six days after state officials administered two lethal doses of the drug pentobarbital on 30 September at the Riverbend Maximum Security Institution in Nashville, her lawyers said. After the procedure, Pike survived and was transported to a nearby hospital, where she was intubated.

Governor Bill Lee has ordered an independent investigation into what went wrong and suspended all executions in the state for the rest of the year. At a Wednesday hearing, 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 her 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 Tennessee Department of Corrections 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,” Stephen Ross Johnson, a Tennessee-based defense attorney, told the BBC.

Johnson is president-elect of the National Association of Criminal Defense Lawyers. He said Tennessee had “botched” two executions in one year — the state also failed to kill Tony Carruthers in May, when officials could not find a vein to administer the lethal injection — which could give lawyers the grounds to argue broadly against the constitutionality of the state’s lethal injection protocol.

Pike’s lawyers could also pursue what Johnson called an “unconstitutional as applied” argument, contending that lethal injection is cruel and unusual specifically for Pike given her medical condition. Her defense lawyers had warned before the execution attempt that she has small veins and thrombocytosis, a blood-clotting condition that would complicate the procedure.

Dr. Joel Zivot, an anesthesiologist retained by Pike’s defense team, told the BBC he suspects the deadly chemical spread under her skin instead of into her bloodstream, and that because of the large dose, it could take days or even weeks for a clear picture of her health to emerge.

Given Pike’s exact medical state is unknown, Vanderbilt University law professor Chris Slobogin said there is a scenario in which the state could be blocked from attempting to execute her again, regardless of method. Executing someone who is mentally incapable of understanding why it is happening is itself considered cruel and unusual punishment, Slobogin explained — a standard historically applied to prisoners with dementia or psychosis, but one experts said could now apply to Pike if she has suffered brain damage.

Since the failed execution, 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 has already filed a bill to “bring back hanging.”

Tennessee could be permitted 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, Slobogin said, which means the choice would have to be hers.

Johnson said he could see the state attempting an execution by a different method, but doing so would require “additional legal hoops,” including approval from the governor’s office and potentially the state legislature.

Slobogin told the BBC he suspects the governor will commute Pike’s sentence, especially if missteps by state officials are uncovered in the investigation Lee 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,” Slobogin said.

There is legal precedent for commuting a death sentence after 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. Hamm later died of natural causes.

“At a minimum there’s going to be some significant delay while this issue is studied by the state,” Johnson told the BBC, adding that Pike’s health would also need to be studied. Only one other person was due to be executed this year after Pike, and Lee has now postponed that execution as well. The Carruthers execution was suspended by a year in May.