How the Supreme Court Caused a Botched Execution in Tennessee
For the first time since the Supreme Court revived capital punishment in 1976, a death-row prisoner has survived an execution. The state of Tennessee administered two lethal injections to Christa Pike on Wednesday night. She is still “alive right now”—as of Thursday afternoon, she is at a local hospital in critical condition, one of her lawyers told reporters. He did not give a prognosis for her long-term fate.Pike’s failed execution is the worst of its kind in roughly a decade. At least two other inmates over the last 20 years have had their executions botched and failed, but in both cases it was because prison officials had either failed to properly find a vein or set an IV line. The failure was mechanical. This time, it was pharmaceutical.Pike’s fate is the inevitable byproduct of the Supreme Court’s turn on the death penalty over the last decade or so. The high court has created a system where states are free to more or less experiment on prisoners while they’re killing them. Prisoners have virtually no legal recourse to challenge what can appear to be indistinguishable from torture. The justices not only rubber-stamp the states’ decisions but refuse to allow lower courts to second-guess them as well.The death penalty remains legal in more than half of the states, but it is only really practiced in a few of them. Sixteen states have executed prisoners over the past 10 years. Most of them have only executed only a few people. Just five states—Alabama, Florida, Missouri, Oklahoma, and Texas—account for roughly three-quarters of the 170 executions since 2020. The federal government also briefly revived capital punishment under Trump during his first term, executing 13 people between July 2020 and January 2021.When the Supreme Court briefly abolished the death penalty in 1972, one argument by the justices was that the system before Furman v. Georgia was too haphazard and random to pass constitutional muster. Justice Potter Stewart famously wrote in his concurring opinion in Furman that the old, arbitrary system of death sentences was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” That randomness persists today by geography rather than procedure: Some states are merely more enthusiastic for executions than others.Christa Pike’s case illustrates that arbitrariness in other ways. A Tennessee jury convicted her in 1996 of the murder of Colleen Slemmer, an acquaintance of hers, on the campus of the University of Tennessee. It was a gruesome killing, one where Pike’s then-boyfriend Tadaryl Shipp carved a pentagram in Slemmer’s chest. Since Shipp was 17 years old at the time of the murder, he could only be sentenced to life imprisonent. Pike received a death sentence.Like many death-row prisoners, Pike had a deeply troubled childhood that included stints in foster care. She mentioned that a neighbor had raped her when she was 11 years old while writing a suicide note as a teenager. When she was 15 years old, social workers removed Pike from her home after multiple reports of physical and sexual abuse by her mother’s boyfriend at the time.Sentencing Pike to die also marked a historical milestone for Tennessee. The state had not executed a woman in more than 200 years. Between 1807 and 1819, Tennessee hanged three Black women for separate murders. Only one of them, Molly Holcomb, had a name that survived the mists of history. In her final appeals, Pike also requested to be hanged instead of receiving a lethal injection because of the likelihood of a painful and potentially botched execution.Those fears were well-founded. A man executed last year by Tennessee with pentobarbital developed pulmonary edema in his lungs, according to an autopsy, which would have given an excruciating sensation of drowning. When the state executed a prisoner in 2019 with a modified version of the old three-drug cocktail, witnesses recalled how he had been “gasping, choking, and gurgling” after the final drug was injected.Like many other states, it once used a three-drug cocktail that included a sedative, a paralytic, and potassium chloride to stop the prisoner’s heart. That method became unviable in the 2010s after the European Union imposed an embargo on lethal-injection drugs. U.S. drugmakers also generally refuse to distribute compounds for executions to state governments as well.Some states simply stopped conducting executions. Others tried to get around this obstacle by sourcing drugs from under-regulated markets like India or by relying on compound pharmacies in the U.S. to procure drugs. A few tried less familiar combinations of drugs to try to achieve the same outcome. In multiple cases, this led to botched executions in the 2010s.An Arizona prisoner gasped for air for almost 90 minutes before dying, long enough for his lawyer to confer by phone with a federal judge and the state’s lawyers about their options. Witnesses reported multiple executions in the mid-2010s where the prisoner appeared to writhe in agony as they died. Clayton Lockett, who was injected with the sedative midazolam by Oklahoma officials, groaned and convulsed for almost 45 minutes before dying.Those botched executions prompted the Supreme Court to take up a case on Eighth Amendment challenges to execution methods. In the end, the court set a nearly insurmountable bar for death-row prisoners to challenge their methods of execution. The high court had never previously struck down a method of execution as unconstitutional. States instead abandoned old methods and introduced new ones in response to public pressure.On the Supreme Court, another turning point came when Justice Anthony Kennedy retired from the high court in 2018. Kennedy had been the decisive vote in constraining capital punishment over the preceding two decades. Backed by his vote, the court abolished the death penalty for minors and people with intellectual disabilities and forbade states from executing people for non-homicide crimes. His replacement, Justice Brett Kavanaugh, has no apparent interest in following in his mentor’s footsteps.Today, the court reflexively disposes of last-minute capital appeals without any reasoning or commentary. (Until they began wielding it for political reasons in 2016, the Supreme Court’s eleventh-hour execution docket was the most notable part of its administrative “shadow docket.”) The justices appear hostile towards death-row lawyers and anti-death penalty activists. Justice Samuel Alito even denounced “what amounts to a guerrilla war against the death penalty” during oral arguments in the midazolam case.In the American constitutional order, people have rights and the government has powers. Not so when it comes to the death penalty. The Supreme Court has flipped it around for the past eight years: The government effectively has the right to execute prisoners, while those prisoners’ constitutional concerns must fall on deaf judicial ears. In a 2019 case involving a last-minute appeal, Justice Clarence Thomas fumed that the court should not reward what he described as “gamesmanship” by prisoners’ lawyers.“[The prisoner’s] strategy is no secret, for it is the same strategy adopted by many death-row inmates with an impending execution: bring last-minute claims that will delay the execution, no matter how groundless,” he wrote, joined by Alito and Justice Neil Gorsuch. “The proper response to this maneuvering is to deny meritless requests expeditiously.” Even if some death-row prisoners do file meritless last-minute appeals, the court’s practice has given the impression that they consider all of them meritless by default.Most egregiously, the high court has also prevented lower courts from imposing their own stays of execution while they consider legal challenges. The justices faced bipartisan backlash when they allowed Alabama to execute a prisoner with only a Protestant minister available instead of the clergy of his faith—one of the clearest Establishment Clause violations of the last ten years. A lower court had suspended that execution, but the Supreme Court reinstated the original execution time while effectively lying about the prisoner’s timeline to appeal.In Pike’s case, the Sixth Circuit Court of Appeals had issued a temporary stay of execution on Wednesday. Pike had argued that the state’s execution method, which involved strapping her to a table while surrounded by male guards would trigger her post-traumatic stress disorder from the abuse she suffered as a child. She asked that the state instead conduct the execution with women officials to avoid Eighth Amendment problems. The state of Tennessee described her lawsuit as an “abusive, tactical delay.” The Supreme Court rejected it without comment or lengthy consideration.If Pike survives, Tennessee will have to decide whether it will try to kill her again. (The Supreme Court ruled in 1947 that second attempts do not violate the Eighth Amendment.) It has no real alternative: Unlike other death-row prisoners in other botched executions, the state cannot simply wait for natural causes to do the job for them when a 50-year-old woman is involved. In the meantime, the states’ maladventures with lethal injection will likely continue in other states, and public opinion will continue to turn against capital punishment. No “guerrilla war” against the death penalty is necessary when the state keeps shooting itself in the foot.
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