The remarkable survival of Christa Pike after an attempted execution in Tennessee poses equally remarkable legal questions about whether a second state attempt to kill her would violate the Constitution.
Pike, 50, who is said to be “conscious” and “speaking” after receiving two doses of lethal injection, faces what her attorneys call a “long recovery” and the prospect she may return to the death chamber.
Her attorneys say a second attempt at ending her life now would be “cruel and unusual punishment” under the 8th Amendment and are urging Gov. Bill Lee to commute her sentence to life without parole. So far, the Tennessee governor has publicly kept execution on the table.
“My responsibility is to uphold the sentences that Tennessee juries have handed down, even when it’s difficult, and that is exactly what we intend to do in the days ahead,” Lee said at a press conference last week. “The people of Tennessee have determined that the death penalty is the appropriate penalty for the most heinous crimes in the state. The people of Tennessee make that decision, and my job is to make sure then that those sentences are carried out.”
Legal scholars say the case presents unprecedented circumstances, as Pike is the first person to have survived administration of pentobarbital, according to the Death Penalty Information Center.
However, it is not the first time an American has survived attempted execution and challenged a subsequent attempt on constitutional grounds.
In 1947, the U.S. Supreme Court decided the case of 17-year-old Willie Francis, a Black teenager who was sent to the electric chair but survived a botched electrocution.
After a Louisiana executioner threw the switch, Francis reportedly screamed “I’m not dying!” and “Take it off! Let me breathe!,” according to court documents.
Witnesses, in sworn affidavits, reported seeing Francis’ lips puff out and swell, body tense and stretch, and the chair itself came off the ground. “This boy really got a shock when they turned that machine on,” one said.
The state insisted no electric current actually passed through Francis’ body due to some mechanical difficulty.
At the time, it was the only known U.S. case of a condemned person surviving an attempted execution.
Francis, who at age 16 had been convicted of murdering a former employer, challenged a second electrocution by arguing it would violate 14th Amendment due process rights, a 5th Amendment prohibition on multiple punishments, and amount to cruel and unusual punishment under the 8th Amendment.
Attorneys for Christa Pike could likely raise similar claims, legal experts say.
The high court in 1947, however, narrowly rejected them.
In a 5-4 decision authored by Justice Stanley Reed, the Supreme Court concluded Francis’ constitutional rights would not be violated by electrocuting him a second time (which Louisiana ultimately did).
“Accidents happen for which no man is to blame,” Reed wrote in the decision.
“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,” he wrote.
Reed rejected claims of added “psychological strain” on Francis because of the botched first attempt and the notion that a do-over would amount to “more severe punishment” than was originally imposed.
Justice Felix Frankfurter, concurring in the decision, added that states also have the right to administer justice as they see fit. “This court must abstain from interference with state action no matter how strong one’s personal feeling of revulsion against a state’s insistence on its pound of flesh,” he wrote.
In dissent, Justice Harold Burton argued that repeated electrocutions amounted to unconstitutional cruelty.
“It is unthinkable that any state legislature in modern times would enact a statute expressly authorizing capital punishment by repeated applications of an electric current separated by intervals of days or hours until finally death shall result,” Burton wrote.
He noted that Louisiana state law – as with most others that authorize the death penalty – call for methods that impose instantaneous and substantially painless death.
“If the state officials deliberately and intentionally had placed [Francis] in the electric chair five times and, each time, had applied electric current to his body in a manner not sufficient, until the final time, to kill him,” Burton wrote, “such a form of torture would rival that of burning at the stake.”
Burton concluded: “It was the statutory duty of state officials to make sure that there was no failure,” he wrote dissenting.
Whether or not the faulty administration of lethal injection to Pike was an “accident” could be a key question in weighing a future legal challenge, if state officials decide to try to execute her again.
State officials have said publicly that they followed established protocol during the episode, even as it is now under independent review.
Pike’s attorneys say they repeatedly pointed out in court documents that her unusually small veins would pose unique difficulty for executioners, and that childhood trauma from rape and sexual abuse would exacerbate mental anguish in the death chamber.
Her attorneys did not immediately respond to ABC News’ request for comment.
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