What happens when a state attempts to carry out a death sentence, but the execution fails? Does the state have the constitutional authority to try again, or should the circumstances prompt a different outcome?
Those questions have taken on new urgency following Tennessee's unsuccessful attempt to execute Christa Pike on September 30, 2026.
Pike survived after receiving two doses of the lethal-injection drug pentobarbital and was hospitalized. Tennessee Governor Bill Lee subsequently halted further executions for the remainder of 2026 and ordered an independent review of the state's execution procedures.
Pike has since returned to prison, where her attorneys say she continues to recover. The incident has renewed debate over capital punishment, the Eighth Amendment, and whether another execution attempt would be constitutionally permissible.
On October 12, Philadelphia criminal defense attorney William "Bill" Brennan of Brennan Law Offices joined Chris Cuomo on Cuomo Crime Time alongside Tennessee House Speaker Cameron Sexton to discuss these questions.
Speaking as a legal commentator, not as an attorney representing Pike, Brennan examined the constitutional questions raised by the failed execution and argued that her death sentence should be commuted to life imprisonment.
What Makes the Christa Pike Case Different?
Pike was convicted of the 1995 murder of Colleen Slemmer, a fellow student at a Tennessee vocational training program. She was 18 when the crime occurred and was subsequently sentenced to death.
Before the execution, Pike's attorneys had challenged aspects of Tennessee's lethal-injection procedures. Following the unsuccessful attempt, a Tennessee court ordered state officials to preserve evidence related to what happened, including medical equipment and records.
Pike's death sentence remains in place, but the state has not publicly established why the execution failed. Whether Tennessee will attempt to carry out the sentence again and how the courts might address further challenges remain uncertain.
For Brennan, three circumstances make the case especially significant: the failed execution, Pike's age when the offense occurred, and the different sentence imposed on her younger co-defendant.
He argued that these factors, considered together, support reconsidering her death sentence. He was not advocating that Pike be released or that her conviction be overturned.
Can a Failed Execution Violate the Eighth Amendment?
The Eighth Amendment prohibits cruel and unusual punishments, including execution methods that violate constitutional standards.
An unsuccessful execution, however, does not automatically establish a constitutional violation or prevent the state from attempting to carry out the sentence again.
During the interview, Brennan referenced Willie Francis, who survived an attempted execution in Louisiana when the electric chair malfunctioned. In Louisiana ex rel. Francis v. Resweber (1947), the U.S. Supreme Court rejected a constitutional challenge to another execution attempt under the circumstances presented.
That decision does not mean every subsequent attempt is constitutionally permissible, regardless of what happened during the first.
The Supreme Court has also considered challenges to execution methods in Baze v. Rees (2008), Glossip v. Gross (2015), and Bucklew v. Precythe (2019).
Those cases involved challenges to lethal-injection procedures and whether alternative methods could reduce the risk of severe pain. For example, the Court considered proposed changes to the drugs used in lethal injections, as well as nitrogen hypoxia, which involves causing death through oxygen deprivation.
Under these decisions, a prisoner challenging an execution method generally must show that it creates a substantial risk of severe pain. The prisoner must also identify a feasible alternative that the state could readily implement and that would significantly reduce that risk. Courts consider whether the state has a legitimate reason for rejecting the proposed alternative.
The framework also applies when a prisoner argues that a particular medical condition makes the state's execution method especially likely to cause severe pain.
During the interview, Brennan and Sexton disagreed about how to characterize the two injections Pike received. Sexton viewed them as part of a single execution attempt, while Brennan argued that the two unsuccessful administrations should not be treated as one continuous attempt.
For Pike, the legal questions extend beyond the failure of the September 30 procedure. They include whether the circumstances of that attempt, and the risks associated with another, could support a constitutional challenge.
Answering those questions would require examining the execution protocol, medical evidence, what occurred during the procedure, and the specific legal claims presented.
Why Did Brennan Raise the Question of Clemency?
Brennan's central argument was that Pike's death sentence should be changed, not that her conviction should be overturned.
"I’m simply arguing change it from death to life," Brennan said.
A commutation changes the punishment without overturning the conviction. Pike's attorneys are seeking a sentence of life imprisonment without parole, which would keep her incarcerated rather than result in her release.
Governor Bill Lee denied Pike's clemency request on September 28, two days before the unsuccessful execution. Her attorneys have since renewed their request for commutation in light of what happened.
Unlike a court reviewing a constitutional challenge, the governor can exercise executive clemency without finding that a legal violation occurred.
Brennan supported that outcome while acknowledging the seriousness of the crime and making clear that he was not disputing Pike's guilt.
Tennessee House Speaker Cameron Sexton disagreed, arguing that Pike's death sentence should remain in effect while the state reviews its execution procedures.
Their disagreement highlights two separate questions: whether the state can legally carry out Pike's death sentence and whether the governor should exercise his authority to commute it to life imprisonment.
Why Does Pike's Age at the Time of the Crime Matter?
Brennan also drew attention to Pike's age when the murder occurred. She was 18, while her co-defendant, Tadaryl Shipp, was 17. Shipp received a life sentence rather than the death penalty.
Their ages place them on opposite sides of an important constitutional boundary.
In Roper v. Simmons (2005), the U.S. Supreme Court held that people who were younger than 18 when they committed a crime cannot be sentenced to death.
Because Pike was already 18 when the murder occurred, that categorical prohibition does not apply to her.
Brennan nevertheless considered her age, her co-defendant's different sentence, and the failed execution together as grounds for reconsidering her punishment. His argument was for commutation, not that her age alone made the death sentence unconstitutional.
How Does Pennsylvania Handle the Death Penalty?
Pennsylvania continues to authorize the death penalty for certain first-degree murder convictions. Under 42 Pa.C.S. § 9711, capital sentencing involves a separate proceeding in which legally specified aggravating and mitigating circumstances are considered.
Factors such as the defendant's age, criminal history, mental or emotional condition, and role in the offense may be considered when determining the appropriate sentence.
Pennsylvania also illustrates the distinction between authorizing capital punishment and carrying it out. In 2023, Governor Josh Shapiro announced that he would not issue execution warrants during his administration and would grant reprieves when execution warrants reached him. The death penalty nevertheless remains part of Pennsylvania law.
During the interview, Brennan questioned the practical value of retaining the death penalty when executions are not being carried out. He suggested that life imprisonment without parole could be just as effective a deterrent as a death sentence that remains subject to a moratorium.
For someone facing murder charges in Philadelphia, understanding the potential penalties is an important part of evaluating the case. When the death penalty is being sought, the evidence supporting aggravating and mitigating circumstances can play a critical role in sentencing.
Why Can Constitutional Questions Matter After a Conviction?
A conviction does not necessarily resolve every legal issue in a criminal case. Depending on the circumstances, questions may remain about the legality of a sentence, alleged constitutional violations, or errors during earlier proceedings.
These issues can become central to criminal appeals and post-conviction proceedings, each of which has specific legal requirements and deadlines.
At Brennan Law Offices, Bill Brennan draws on nearly 40 years of criminal defense experience when representing individuals facing serious charges.
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Disclaimer: The articles on this blog are for informational purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.