Christa Pike, a death-row inmate in the US state of Tennessee, was conscious and speaking after surviving two attempts to execute her by lethal injection.
Pike’s attorneys told The Associated Press that she was undergoing treatment at a hospital.
Pike, 50, was sentenced to death in 1996, a year after killing 19-year-old Colleen Slemmer. She committed the crime with the help of her then-boyfriend, Tadaryl Shipp.
The botched execution attempt happened on September 30, when the officials of the Tennessee Department of Correction administered two doses of pentobarbital.
Pike was heard snoring even after the second dose was administered. Had the execution been completed, Pike would have become the first woman to be executed in Tennessee in more than 200 years.
Now that Pike has survived two attempts at execution, the question is: What happens next?
The US Constitution does not explicitly lay down the steps that must be followed after a botched execution. The possible scenarios have to be understood by looking at constitutional provisions, state law and legal precedents.
A failed execution attempt does not automatically mean that the state is barred from trying again. Under Tennessee State law, when an execution has not been carried out, the death sentence remains in force.
However, Pike’s case is unusual because she survived not one but two attempts to execute her. The Death Penalty Information Center has described the case as unprecedented in the modern era of lethal injection.
Pike’s lawyers can challenge another execution attempt by raising several constitutional arguments.
The US Constitution prohibits the infliction of cruel and unusual punishment. Pike’s attorneys could argue that another attempt, after the physical and psychological trauma caused by the two failed attempts, would amount to cruel and unusual punishment.
According to AP, Pike’s attorneys have said that her arms were left burned and blistered as a result of the botched attempts.
There are also constitutional protections concerning a condemned person's mental capacity. The Supreme Court has held that executing a person who lacks a basic understanding of why they are being executed or the punishment they are about to suffer can violate the Eighth Amendment.
It remains to be seen what lasting physical or psychological effects the failed execution attempts have had on Pike.
Another constitutional argument could involve the Fifth Amendment's protection against double jeopardy. However, this is a more complicated and potentially weaker argument. Double jeopardy primarily protects a person from being prosecuted or punished twice for the same offence. Courts have previously rejected the argument that a failed execution necessarily amounts to a second punishment for the same crime.
In fact, the US Supreme Court considered this issue in the case of Willie Francis, a Louisiana teenager who survived an unsuccessful electrocution attempt. The court ultimately ruled that a second attempt did not violate the constitutional protections against double jeopardy or cruel and unusual punishment.
Pike's legal team could nevertheless argue that a third attempt would be constitutionally impermissible because of the extraordinary circumstances surrounding the two failed attempts.
Whatever legal route they take, the two failed attempts are likely to result in significant litigation before another execution could take place.
According to AP, Pike’s attorneys are seeking a court order requiring the Tennessee Department of Correction to preserve evidence and other information relating to the failed execution attempts on September 30.
Pike also has another possible avenue: clemency.
Tennessee Governor Bill Lee has the power to commute Pike’s death sentence. Her lawyers had already petitioned Lee for clemency before the September 30 execution date, asking him to commute her sentence to life imprisonment without the possibility of parole.
Following the failed execution, Lee suspended all scheduled executions in Tennessee and ordered an independent review of Pike’s case, according to CNN.
The review could therefore have a significant bearing on what happens next.
Pike’s case is highly unusual because she survived two actual attempts to execute her.
There have, however, been other cases in which condemned prisoners survived failed execution attempts and subsequently faced the possibility of being executed again.
Around 80 years ago in Louisiana, 16-year-old Willie Francis survived an execution attempt in the electric chair.
Francis’s lawyers appealed to the US Supreme Court, arguing that a second attempt would violate the constitutional protections against double jeopardy and cruel and unusual punishment.
In Louisiana ex rel. Francis v. Resweber, the Supreme Court rejected the challenge, clearing the way for a second execution. Francis was executed the following year.
In Ohio, executioners spent more than two hours attempting to find a suitable vein through which to administer lethal drugs to Romell Broom. They ultimately failed to establish an intravenous line. Broom was granted a reprieve and his execution was later rescheduled. However, the second attempt never took place. Broom died of complications from COVID-19 in prison in 2020.
Hamm is another death row inmate who survived a botched lethal injection execution attempt. Alabama prison officials tried for two-and-a-half hours to unsuccessfully establish an IV line. Due to his severe underlying medical conditions and the trauma of the failed attempt, Alabama eventually agreed in a legal settlement to never try executing him again.
The death penalty is abolished in 23 of the 50 US states. The rest of the 27 states legally recognise the death penalty.
Just like the status of the death penalty varies across nations, so do the steps taken in the case of a failed attempt.
In essence, Christa Pike surviving two execution attempts has drawn global attention to capital punishment and what is likely to happen in the case of failed attempts.