Trying to execute Christa Pike again would push into uncharted legal territory, experts say

After Christa Pike survived Tennessee’s failed attempt to execute her, the unsettled question of whether the state will try again could push Tennessee into uncharted legal territory, experts say.

Pike, 50, suffered burns and blisters to her arms and her prognosis remains uncertain after executioners tried to give her two lethal doses of pentobarbital, her legal team said Wednesday. She was sentenced to death for the 1995 beating and stabbing death of classmate Colleen Slemmer.

Although other states have moved forward with attempting to execute inmates a second time, in those cases, the first try had been halted before any drug actually began flowing.

Outgoing Republican Gov. Bill Lee has paused executions in Tennessee and ordered an outside review of the failed Sept. 30 attempt to put Pike to death. His office did not immediately respond to emails seeking comment on whether the state would try again to execute her.

Death penalty experts say it’s hard to know what will happen if the state decides to move forward with a second attempt.

“Whether or not it would be lawful for the state of Tennessee to attempt to execute her again is a complex question that will take significant time, attention and analysis of her defense team, the prosecution team, the state government in Tennessee and multiple state and federal courts,” said Stephen Johnson, a criminal defense attorney in Tennessee who is president-elect of the National Association of Criminal Defense Lawyers.

Mental competency could be a first hurdle

Pike regained consciousness almost six days after the failed attempt to kill her. Her legal team had believed she was brain dead, but after she woke up, she was aware of what happened and was “angry and confused,” her lawyers said Wednesday.

Her attorneys will surely explore the medical and psychiatric impact of receiving two doses of the lethal injection drug and being on a ventilator for several days to determine if she is “now legally competent to even be executed,” Johnson said. That will likely include neuropsychological and forensic psychiatric evaluations and potentially other medical tests, and then there would “undoubtedly be significant litigation” over those issues, which can take years, he said.

Other cases could serve as a guide, but none are quite the same

There have been dozens of troubled executions, according to the Death Penalty Information Center, including several attempts that did not end in death.

Alan Miller and Kenneth Smith both survived lethal injection attempts in Alabama in 2022. Both argued that a second execution attempt violated the Eighth Amendment’s prohibition on cruel and unusual punishment as applied to them individually, which courts found “plausible” in early litigation stages. However, the U.S. Supreme Court did not agree to decide this question, and both were ultimately executed by nitrogen gas in 2024.

Two other inmates, Thomas Creech of Idaho and Tony Carruthers of Tennessee, remain on death row after failed attempts to administer lethal injection drugs.

But Pike’s case is distinguishable from others where a second execution attempt was made because she “bore the brunt of lethal drugs,” said Jordan Steiker, co-director of the Capital Punishment Center at the University of Texas. He said other cases involved “the psychological trauma of facing an execution effort” but not “grievous harm.”

A similar case that predates the modern death penalty era

Louisiana executioners tried to put to death 17-year-old Willie Francis in 1946 but called off their efforts after an improperly prepared electric chair failed to kill him.

But he was executed by electrocution the following year after the U.S. Supreme Court ruled that a second execution attempt did not violate double jeopardy under the Fifth Amendment or constitute cruel and unusual punishment under the Eighth Amendment, attributing part of its reasoning to the “malfunction” of the electric chair.

The court notably said, “Accidents happen for which no man is to blame.” But a dissenting justice called the experience of being subjected to a second execution attempt “death by installments.”

It’s not clear whether this case would be viewed as controlling precedent because the Court has not revisited this ruling using its modern “evolving standards of decency” approach to the Eighth Amendment, Steiker said.

“So I think the guide today would be whether or not it would be viewed as repulsive according to contemporary community standards to attempt a second execution,” he said.

Complex legal issues

Experts said they are not aware of any state or federal statute that explicitly bars a second execution attempt after a first one fails.

John Mills, a lawyer who represents people facing the death penalty, said a crucial question would be whether a second attempt to execute Pike would amount to torture.

He said federal courts have declined to intervene in “less egregious” cases, but noted that Pike’s lawyers had previously warned that her medical conditions could complicate a lethal injection and make it agonizing.

“Facing her death a second time having thought she was going to die and then instead being tortured raises a strong claim that a second attempt to kill her would amount to torture violating the Eighth Amendment,” Mills said.

Steiker said he believes Pike’s case would be “uncharted territory” if Tennessee moves forward with a second attempt.

“The most obvious way to avoid litigation over this would be for the governor to commute the sentence,” he said.

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Associated Press writers Kim Chandler in Nashville, Tennessee, and Anna Wilder in Austin, Texas, contributed reporting.