A recent botched execution in Tennessee has brought the question of the death penalty to the fore. What are the constitutional issues of the death penalty in general and this Tennessee execution specifically?
I understand that the death penalty is an emotional, and often polarizing issue. While there are many arguments both for and against the taking of a human life as punishment for a crime, I want to focus on the Constitutional issues.
Botched Execution
Let’s start with the facts in this execution, at least as I know them at the time of the writing of this article. Christa Pike was convicted of the 1995 brutal murder 19-year old woman. Court records show that, at the age of 18, Ms. Pike, along with her boyfriend and another female friend, lured their victim into the words, tortured and killed her. Ms. Pike was convicted of first-degree murder and conspiracy to commit murder in 1996, and sentenced to death. Ms. Pike was eventually scheduled to die on September 30, 2026, some 30 years after her conviction. This execution made national news, since it was the first time a woman would be executed in the State of Tennessee since 1819.
An hour before her execution, the Sixth Circuit Court of Appeals issued an indefinite pause. This was based on her attorney’s filings claiming her history of sexual abuse and rape were not properly considered during her trial and sentencing. The Supreme Court overruled the Sixth Circuit, allowing the execution to proceed.
Starting the evening of September 30th, Ms. Pike received two doses of pentobarbital, each of which should have been fatal. While this rendered Ms. Pike unconscious, witnesses stated she still had a heartbeat and was heard snoring and making other noises. Her attorneys claim that for 15-20 minutes, Ms. Pike was suffering without receiving medical attention. Before losing consciousness, Ms. Pike said “The vein in my arm feels like it’s about to bust” and “one spot is really throbbing.” Shortly before 9PM, as witnesses were leaving, they reported seeing emergency vehicles pulling up to the building. Ms. Pike was transported to the hospital in critical condition.
In response to this, and possibly a previous failed execution, Tennessee Governor Lee placed a pause on all executions in the state for the rest of the year.
Eighth Amendment
There is no prohibition against the death penalty in the Constitution. There is, in the Eighth Amendment, a prohibition against cruel and unusual punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
U.S. Constitution, Amendment VIII
There are people who believe that the death penalty is cruel, but that is a relatively recent change in the view of American society. However, I believe there can be no rational argument that this particular execution was cruel.
Ms. Pike’s attorneys claim that medical experts warned that it would be difficult to access her veins due to a medical condition. I have not been able to identify these medical experts, nor verify the claims that warned about her medical condition. The Tennessee Department of Corrections say they were not informed of her condition. This is important, since Ms. Pike’s complaint about the pain in her arm would tend to lead someone to believe that the IV was not properly placed in her vein, leading to the medication and IV fluid building up in her arm.
The Tennessee Department of Corrections stated they “followed every step of the state’s lawful, established execution protocol approved by the Attorney General’s Office,” but I have to wonder if and why DOC was not notified of her condition? Was the person putting in the IV properly trained? Did they not verify the placement of the IV before the lethal injection, or did the verification fail?
In one report, it is claimed that Ms. Pike requested and was granted an all-female team to administer the lethal injections. She also requested, if she could not get an all-female team, that she be executed by another method such as firing squad or hanging. Perhaps one of those methods would have been less cruel.
As Governor Lee said in a statement, ““Carrying out a lawfully imposed sentence is among the State’s most serious responsibilities, and the people of Tennessee expect it to be done in a manner that is not only legal and constitutional, but is effective.” Since I believe this is the second lethal injection to fail in the State of Tennessee this year, I have to wonder if the State is living up to the Governor’s statement?
Conclusion
I’m sure plenty of people will disagree with me, but this is my conclusion.
My first conclusion, which may sound contradictory, is the value I place on human life means I support the death penalty, with some caveats. After all, what is the appropriate punishment for intentionally taking the life of another? I’m not talking about self-defense or unintentional homicide, but the premeditated taking of innocent life. This brings me to my first caveat: The death penalty should be reserved for truly heinous crimes.
My second caveat is that the level of proof has to be more than just beyond a reasonable doubt, it must be beyond all doubt. After all, while you cannot give a prisoner back the years they have lost, if they are later found not guilty you can release them. That is not an option with the death penalty. Since there is no compensation for that, since the taking of a human life due to an incorrect decision by a jury cannot be rectified, every question about the guilt of the accused must be answered before sentence is carried out. That said, I do not think it should take 30 years to do so. I think it’s cruel to leave someone on death row for decades, wondering if or when sentence will be carried out. I’m not sure what the answer is, but I think it is certainly worth investigating.
When it comes to the facts of this execution, I do see some problems. First of all, if the attorneys are correct and Ms. Pike has a medical condition which would make lethal injection difficult or impossible, why was the Department of Corrections unaware of it? It would be in her medical records, correct? And I would expect any competent medical professional to check her medical records before administering any medication. Whether or not she had a medical condition, it appears that the IV was not properly placed. As someone with a family member that receives regular intravenous medication, I’ve witnessed some failures. I’ve seen missed veins and blown veins, yet I have never seen a medical professional continue treatment once a failed IV is discovered. Which begs the question: What qualification or qualifications did the person inserting the IV and delivering the injection actually have?
As of the writing of this article, Ms. Pike spent several days in critical condition, but is alert and has been discharged from the hospital. She remains on death row awaiting the state’s decision about how they proceed. I’ve heard some people claim she cannot be executed again as that would be double-jeopardy. However, that is not what the Fifth Amendment says:
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;
U.S. Constitution, Amendment V
She has already been put in jeopardy of her life, and sentenced to death. Would it be cruel to once again attempt to enforce that sentence? I think another attempt at lethal injection would be cruel. The question is was her sentence to be put to death, or specifically put to death by lethal injection? If the latter, then we have a problem. Not with attempting to enforce the sentence a second time, but with unqualified people determining the proper method of execution. If you wouldn’t ask your car mechanic to prescribe you a pain killer, why ask him to prescribe a medical execution?
I think this botched execution should be the impetus for a closer look at the process and policies used for the ultimate sanction. This is one of the most serious powers delegated to government. We have a duty to insure they are not only protecting the rights of all involved, but that if someone is sentenced to death it be done in a reasonable amount of time, and with as little pain and suffering as is possible.
