INTRODUCTION
Executive clemency by incompetence. This is the probable result in the Christa Pike case. We now know that despite clear notice of potential problems with Pike’s veins from her own statements and medical records, incompetent personnel went forward with the injections, which were not delivered in accordance with their intended use. This caused a disastrous result that will set back the legitimate retributive goals of the death sentence for years. Anti-death penalty advocates will seize upon this and other failed attempts to utilize lethal injection to attack the concept of the punishment writ large and pressure the state legislatures permitting this punishment to abolish it. Other methods need to be used and include a firing squad, electrocution, and nitrogen hypoxia. Hanging has also been validated as consistent with the Eighth Amendment’s prohibition against “cruel and unusual punishments…” The full discussion of these issues follows in this piece. Here is where it stands currently:
Christa Pike is now on a ventilator and unconscious and may well be in this state for months or years;
This condition resulted from a grossly incompetent staff infusing the drugs in a manner that may well be deemed cruel and unusual;
The legal challenges to a second attempt to carry out a lawful sentence will take years and will certainly wind up at the Supreme Court, which has yet to resolve the issues presented in this particular context, especially the Double Jeopardy issue—was she punished, and can she be punished again even though it is a single sentence from a single trial?
The politics will pressure the Governor to commute the sentence to save millions in litigation costs and the forging of bad law, but this will not prevent the additional millions which will be spent on life care for a previously condemned prisoner who is now unfit to be put to death—yes, you read that correctly;
Should the state argue that if she is unconscious and will die if removed from the ventilator, and, if so, can the Attorney General submit the issue to the courts to have a writ issued permitting termination of life support, especially since there will be no pain involved in the cessation of life-supporting care?
I doubt the Governor will defer to the courts or order a second attempt and will most probably commute the sentence and task the legislature with selecting alternative methods that do not involve the probability of medical malpractice—a continuing issue in correctional medical care. There have been several botched lethal injection attempts nationally. Inmates are not pillars of health, and many have vascular insufficiency. The death penalty is consistent with sentencing methodology if the right aggravating factors are present. Knee-jerk reactions to incompetence should not remove this option from prosecutors or sentencing juries. Bad facts not only make bad laws, but they also make bad policy.
THE LAW
In the case of Buckley v. Precythe 587 U.S. 119 (2019), the Supreme Court, in an opinion delivered for the majority by Justice Gorsuch, reaffirmed the Eighth Amendment standard of review when a condemned prisoner challenges the method of execution. States, consistent with federalism, have wide leeway in determining what methods are permissible and practicable. The holding is distilled with the following excerpts:
The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless death. As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason… this standard governs “all Eighth Amendment method-of-execution claims. The Constitution affords a measure of deference to a State’s choice of execution procedures and does not authorize courts to serve as boards of inquiry charged with determining best practices for executions. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available.
THE MAJORITY IN BUCKLEY REVIEWED THE HISTORY AND TRADITION OF THE EIGHTH AMENDMENT, AND WE SEE THAT THE FRAMERS REJECTED PUNISHMENTS THAT WERE STILL IN EFFECT IN ENGLAND AT THE TIME OF THE RATIFICATION OF THE CONSTITUTION
Justice Gorsuch wrote:
While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain punishments even though they had largely fallen into disuse—punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. 4 W. Blackstone, Commentaries on the Laws of England 370 (1769). These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.”
Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447-448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, … maiming, mutilating and scourging to death”). Justice Story even remarked that he thought the prohibition of cruel and unusual punishments likely “unnecessary” because no “free government” would ever authorize “atrocious” methods of execution like these. 3 J. Story, Commentaries on the Constitution of the United States § 1896, p. 750 (1833).
Consistent with the Constitution’s original understanding, this Court permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone “and all others in the same line of unnecessary cruelty.” A few years later, the Court upheld a sentence of death by electrocution while observing that, though electrocution was a new mode of punishment and therefore perhaps could be considered “unusual,” it was not “cruel” in the constitutional sense: “[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies … something inhuman and barbarous, something more than the mere extinguishment of life.”
IT IS UNCERTAIN WHETHER A MODERN COURT WOULD PERMIT A SECOND EXECUTION ATTEMPT GIVEN THE EXTREMELY BOTCHED NATURE OF THE FIRST ONE, AND THE ADDITIONAL QUESTION OF WHETHER THE DOUBLE JEOPARDY CLAUSE WOULD ALSO PREVENT IT HAS NOT BEEN DETERMINED BY THE SUPREME COURT IN THIS CONTEXT
There is no question that the factual reality of Christa Pike’s current condition of unconsciousness and disability creates what may be a case of first impression for any reviewing state or federal court. The drug was administered and created physical pain, deformity, and apparently neurological damage. She is now under a disability and unable to communicate or understand the nature of the current proceedings. A guardian will have to be appointed. The Supreme Court has prevented states from executing those considered mentally retarded, and this disability would seem in that classification. The condemned must be aware and understand the nature of the proceedings. It is all but certain that she cannot be put to death in this condition. Seems counterintuitive that she must be declared fit to be put to death. The cases have set forth many hurdles the state of Tennessee will have to clear. Expect filings soon in courts of proper jurisdiction—probably the federal district court on the issues of the Eighth Amendment and the Fifth Amendment Double Jeopardy clause. The Tennessee state courts might be the court of initial resort. It may take years in the absence of immediate action from the Governor in commutation of sentence to get the answers.
Two cases are instructive with many differing facts, however. In Louisiana v. Resweber, 329 U.S. 459 (1947), the Supreme Court considered the case of a condemned prisoner who was given last rites and placed in the electric chair. The executioner pulled the switch, and there was a mechanical failure, but not before permitting some non-lethal dose of electricity to pass through the body of the prisoner, Willie Francis. He was taken from the chair and returned to his cell. The record does not establish that he was rendered unconscious or suffered any real injury from the first failed attempt. Before a second scheduled execution attempt, he filed a suit that wound up before the justices, alleging that the Eighth Amendment and the Double Jeopardy Clause of the Fifth Amendment precluded the second attempt. The majority held that the Eighth Amendment did not preclude a second attempt and that the Fifth Amendment did not preclude the punishment, as it was thought at the time that the Double Jeopardy Clause did not apply to the states. It does, however, and the Supreme Court has never settled the question in this specific context. The Court’s reasoning follows:
Petitioner’s suggestion is that because he once underwent the psychological strain of preparation for electrocution, now to require him to undergo this preparation again subjects him to a lingering or cruel and unusual punishment. Even the fact that petitioner has already been subjected to a current of electricity does not make his subsequent execution any more cruel in the constitutional sense than any other execution. The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution.
For we see no difference from a constitutional point of view between a new trial for error of law at the instance of the state that results in a death sentence instead of imprisonment for life and an execution that follows a failure of equipment. When an accident, with no suggestion of malevolence, prevents the consummation of a sentence, the state’s subsequent course in the administration of its criminal law is not affected on that account by any requirement of due process under the Fourteenth Amendment. We find no double jeopardy here which can be said to amount to a denial of federal due process in the proposed execution.
In the modern era, the Sixth Circuit Court of Appeals in Broom v. Shoup 963 F 3d 500 (2020) examined the case of the inmate, Romell Broom, who was the subject of a botched execution attempt involving lethal injection. Although the “cocktail” of drugs was different from those administered to Pike, they were never actually administered to Broom because, after several attempts to establish a proper IV pathway through a vein, the execution was aborted because the drugs could not be administered at that time. The record established that during at least an hour in the death chamber, several sites were probed and pierced, and in one instance bone was struck. Broom cried out in pain, according to witnesses, and attending medical staff confirmed that the several attempts to find a suitable site were causing pain and discomfort. Over a period of years, the challenge by Broom to a second attempt went through the state court system in Ohio and was then challenged by use of the habeas process in federal courts. The Sixth Circuit reviewed the procedural record:
Broom’s case then went to the Ohio Supreme Court. In a 4-3 decision, the court held that neither the Eighth Amendment nor the Fifth Amendment barred a second execution attempt. As for Broom’s Eighth Amendment claim, the majority first analyzed the Supreme Court decision in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947)—in which the Supreme Court upheld the constitutionality of a second execution attempt, in the context of a failed electrocution—and then concluded that, “[b]ased on Resweber,” a second execution attempt would not violate the Eighth Amendment here because Ohio’s “intention in carrying out the execution is not to cause unnecessary physical pain or psychological harm, and the pain and emotional trauma Broom already experienced do not equate with the type of torture prohibited by the Eighth Amendment.” The majority also held that, because Ohio had revamped its lethal injection protocol since Broom’s failed execution and because the state had conducted over 20 executions under those revamped protocols (with the federal courts’ approval), Broom had not established that the state was likely to repeat its past errors. Id. at 631-32 (citing Ohio’s public execution database and as for Broom’s Fifth Amendment claim, the majority reasoned that, because the state’s first execution attempt “did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached,” and, as a result, a second execution attempt did not implicate “the Fifth Amendment protection against double jeopardy.”
Both the Court of Appeals and the Ohio Supreme Court did not see a constitutional bar to a second attempt at fulfilling the will of the trial judge and jury to implement the sentence of death still permitted under Ohio law:
The Supreme Court has never applied the Double Jeopardy Clause in the particular context of a second execution. Although Willie Francis raised a double jeopardy concern in Resweber, the Court declined to apply the Fifth Amendment Double Jeopardy Clause under then-prevailing precedent. A logical application of the more general Double Jeopardy Clause precedent described above, however, suggests that the Clause does not prohibit a second attempt at execution. This is because, when a capital-punishment state attempts to execute a death-row inmate a second time, following a failed first attempt, the state is neither (1) attempting to subject that defendant to a second trial following an acquittal nor (2) attempting to impose a “second” punishment beyond that permitted by the legislature.
The key differences in the Pike case are:
The drugs were actually administered after incompetent medical staff either burst insufficient vasculature or bypassed the veins, and the pentobarbital was introduced through muscle and tissue with a slow and differing absorption rate;
The drugs caused pain, disfigurement, and unconsciousness, requiring hospitalization and a ventilator;
Witnesses stated that she was aware of the discomfort and experienced pain;
Was this level of pain and the subsequent disabling effects “punishment” and “torture” so as to trigger both an Eighth Amendment bar to a second procedure as well as a scenario in which jeopardy has attached, also barring a second attempt?
If the actions of the medical staff were reckless and deliberately indifferent to her medical state of pre-existing vascular insufficiency, would this also preclude any further attempt to carry out the lawful sentence of a jury from 1996?
CONCLUSION
This case will have a wide range of effects on a very significant public policy issue. If certain aggravating factors are established, juries have the option of imposing the death penalty. They know from life experience that inmates who are sentenced to life without parole enjoy the protection of due process and become wards of the state for decades while receiving medical care, educational opportunities, employment, and even the opportunity for marriage. The vileness and shocking nature of many crimes demand that part of sentencing methodology that allows for retribution and permits the sanction of death. Christa Pike committed such acts that were so shocking that a modern jury handed down the first death sentence for a woman in Tennessee in 200 years. Perhaps it was the fact that she had breakfast after a brutal torture murder of her friend with a piece of the victim’s skull while bragging about it. The miscreant is now a martyr.
Mike Imprevento
October 4th, 2026