The Failed Execution
There are occasions when an event exposes a legal institution not by what it accomplishes but by what happens when it fails. The failed execution of Christa Pike in Tennessee is such an occasion. It is tempting to regard the episode as a malfunction in the machinery of capital punishment: an intravenous difficulty, a problem with the administration of pentobarbital, or a failure of established protocol. Tennessee has stated that its officials followed the lawful execution protocol and that an independent investigation would follow. But jurisprudence begins precisely where engineering ends. The question is not merely why the mechanism failed. It is what the failure reveals about the legal and moral proposition that the mechanism was designed to accomplish.
For more than an hour, the State attempted to bring about Pike’s death pursuant to a judicial sentence. When death did not occur, the State turned to medical intervention to preserve her life. This sequence creates a jurisprudential paradox. The same legal order that had determined that Pike’s life could legitimately be terminated was suddenly required to protect that life. The paradox is not necessarily one of positive law. A State may coherently provide emergency medical treatment to a prisoner notwithstanding a death sentence. The deeper ambiguity is philosophical: how can an institution regard the life of a person as legally subject to extinction and, at the same time, recognize that person’s continuing claim to life and medical protection?
What’s in a Name?
The distinction between killing and execution lies at the heart of the jurisprudential dilemma. When an individual deliberately extinguishes the life of another, the law ordinarily characterizes the act as homicide or murder and subjects the perpetrator to the coercive authority of the State. When, however, the State itself deliberately brings about the death of a human being pursuant to a judicial sentence, the same physical act is transmuted, in the language of law, into an “execution”. The biological consequence remains unchanged: human life is deliberately terminated. What changes is not the act itself but the juridical authority under which it is performed. The law thereby confers upon an otherwise prohibited act a different normative character by placing it within an institutional and procedural framework. It is precisely at this point that the philosophy of law encounters its most difficult question: whether legality and institutional authority are sufficient, in themselves, to transform the moral character of an act which, when committed by a private individual, the same legal order condemns as the gravest violation of human life
This is where the rule of law encounters one of its most difficult questions. The rule of law ordinarily means that governmental power is constrained by law, that decisions are made according to established procedures, that individuals are treated according to publicly known rules, and that judicial authority is exercised independently and rationally. If a death sentence has been lawfully imposed and the prescribed procedures have been followed, the execution may therefore be legally authorized. But legality and legitimacy are not synonymous. The fact that the law authorizes an act does not necessarily resolve the philosophical question whether the act is just.
Philosophical Arguments
Immanuel Kant
The ambiguity surrounding Pike’s execution becomes particularly interesting when viewed through the jurisprudence of Immanuel Kant. Kant’s philosophy presents one of the most powerful intellectual foundations for retributive punishment. For Kant, punishment must be imposed because a person has committed a crime and not merely because punishment produces some desirable future consequences. Justice requires that the wrongdoer be held accountable for the wrong committed. In his discussion of murder, Kant’s position is uncompromising: the murderer has forfeited his or her right to life through the deliberate destruction of another’s life.
At first sight, therefore, Kant might appear to provide a philosophical justification for Pike’s execution. If the murder of Slemmer was established through due process, Kant would not necessarily regard the death penalty as an impermissible act of vengeance. Rather, punishment would be an expression of justice and the moral responsibility of a rational person for his or her actions.
Yet Kant’s philosophy also introduces a significant complication. Human beings must never be treated merely as means to an end. They possess intrinsic worth because they are rational moral agents. Even the wrongdoer remains a member of the moral community. The State therefore cannot simply convert the condemned individual into an administrative object—a “sentence” awaiting completion. The execution of Pike confronts us with precisely this tension. If the State executes because justice requires accountability, the individual must still be regarded as a human being and not merely as the physical embodiment of a judgment.
Pike’s survival made that distinction visible. While the execution procedure was taking place, the institutional machinery could regard her as the subject of a sentence. When the procedure failed, however, the abstraction disappeared. There was no longer merely a “death sentence” to be carried out. There was a living person requiring medical attention. Kant’s insistence upon the moral status of the individual therefore becomes relevant even where his retributive theory might support capital punishment.
Jeremy Bentham
Jeremy Bentham approaches the matter from an entirely different philosophical direction. Bentham’s utilitarianism evaluates punishment principally through its consequences. Punishment is itself an evil because it deliberately inflicts suffering. It can therefore be justified only if it prevents greater evil or produces sufficient social benefit to warrant the suffering imposed.
The utilitarian question surrounding capital punishment consequently becomes whether the execution produces a social benefit sufficiently greater than the harm it causes. Does it deter future crime? Does it protect society? Does it reinforce public confidence in the administration of justice? Does it provide a form of closure to victims’ families? These questions are empirical as much as philosophical.
The failed execution introduces another utilitarian difficulty. If an execution causes prolonged suffering, uncertainty, institutional disruption and public controversy, its justification cannot simply rest upon the proposition that the individual deserves to die. Bentham would require the consequences to be considered. An inefficient execution procedure may produce greater suffering without producing greater social utility. But even improving the procedure would not answer the more fundamental question. A perfectly efficient mechanism for causing death could still require justification.
John Stuart Mill
John Stuart Mill adds another dimension. Mill’s defence of individual liberty is founded upon the principle that coercive interference with an individual requires justification by reference to harm. Murder constitutes perhaps the clearest possible harm to another person, and Mill would have recognized the compelling social necessity of restraining those who threaten the lives of others. Yet this does not automatically establish that the State should kill the offender.
The principle of liberty also raises the question of the limits of governmental power. A State possesses extraordinary coercive authority. It can imprison, deprive property, restrict movement and, under certain legal systems, terminate life. The more irreversible the coercive act, the greater the burden of justification. Imprisonment permits correction of error; execution does not. If a court subsequently discovers that an imprisonment was wrongful, the individual may be released. An executed person cannot be restored to life.
This irreversibility gives capital punishment a special character within the rule of law. The law is necessarily administered by human institutions and therefore remains vulnerable to human error. A system that imposes irreversible punishment must confront the possibility that its own institutional processes may be fallible.
Georg Wilhelm Friedrich Hegel
Hegel offers another perspective. For Hegel, punishment may be understood not simply as the infliction of suffering but as a restoration of the normative order violated by the criminal act. Crime negates the right of another; punishment negates that negation and thereby restores the authority of right.
Hegel’s conception is important because it permits us to distinguish punishment from vengeance. Vengeance is personal and emotional. Punishment, properly understood, is institutional and normative. The State does not punish because it hates the offender but because the legal order has been violated.
Yet this distinction also raises the question whether the restoration of right necessarily requires the destruction of the offender. If the objective of punishment is to restore the authority of law, then imprisonment and other sanctions may also affirm the normative order. The proposition that justice requires death therefore remains a proposition requiring independent justification.
John Rawls
The most illuminating framework may be found in John Rawls’s A Theory of Justice. Rawls asks us to consider principles of justice from the standpoint of free and equal persons situated behind a “veil of ignorance.” Those choosing the principles of their society would not know whether they would become wealthy or poor, powerful or powerless, victim or accused, judge or prisoner. They would therefore be required to construct institutions without knowing which position within those institutions they would occupy.
Applied to capital punishment, this thought experiment is profound. Would rational persons, deprived of knowledge about their future social position, authorize an institution possessing the irreversible power to take their lives? Rawls does not provide a simplistic answer that capital punishment is necessarily incompatible with justice. His broader theory permits a legal system to impose coercive institutions where they can be justified within a fair structure of basic liberties and equal citizenship. But his framework requires us to examine whether the institution itself can be justified to persons regarded as free and equal.
The veil of ignorance also exposes the danger of allowing the identity of the offender to determine the structure of justice. If one knew beforehand that one would be the victim, the desire for severe punishment might be overwhelming. If one knew that one would be the accused, the fear of irreversible punishment would be equally profound. Justice, for Rawls, requires principles that can survive the removal of such privileged knowledge.
The Value of Human Dignity
This brings us directly to the concept of human dignity. Dignity is not merely a sentimental assertion that every person is valuable. In constitutional and international legal thought, dignity expresses the idea that the human person possesses a status that cannot simply be reduced to utility, social convenience or administrative classification.
The condemned person is therefore still a person. A sentence may restrict liberty, but it does not necessarily erase personhood. The danger of capital punishment is that the sentence can become conceptually dominant over the individual. The State begins to speak of “carrying out the sentence” rather than “taking the life of a human being.” Language performs an important jurisprudential function here. It creates distance between the institution and the moral reality of what is being done.
Pike’s survival removed that linguistic distance. The State could no longer speak only of the completion of a sentence. It had to confront a living woman. The condemned person was not an abstraction. She breathed, required medical treatment and remained subject to the obligations that the State owes to persons in its custody.
This is perhaps where the rule of law becomes most complex. The rule of law requires fidelity to lawful judgment, but it also requires the State to exercise power within principled limits. A State may therefore be legally entitled to execute and nevertheless remain open to the philosophical question whether execution is consistent with the deeper values that give law its legitimacy.
There is also an important danger in describing this issue solely through the perspective of the offender. Colleen Slemmer was murdered, and her family continues to live with an irreversible loss. Any discussion of capital punishment that treats the offender’s dignity as the only relevant dignity would be incomplete. The victim possesses dignity; the victim’s family possesses interests; and society possesses a legitimate interest in security and justice.
The question, however, is whether respect for the victim requires the State to reproduce the violence in another institutional form. Retribution may be understood as proportional accountability, but it may also become an institutionalised continuation of suffering. The distinction between justice and vengeance therefore becomes essential. The State claims to rise above private vengeance precisely because it is expected to exercise restraint, rationality and proportionality.
The failed execution also exposes the fragmented responsibility inherent in capital punishment. Judges impose sentences. Prosecutors seek convictions. Governors may participate in the process of authorisation. Corrections officials administer the execution. Medical personnel may become involved in the process or its aftermath. Each actor performs a legally defined function.
This fragmentation can create what might be described as a diffusion of moral responsibility. No single person appears to be “the killer.” The institution itself becomes the actor. Yet the State is an artificial juridical entity. It cannot escape moral responsibility merely because its functions are divided among officials.
The Pike episode makes this institutional responsibility particularly stark. Had she died, the State would have described the execution as the lawful completion of a sentence. Because she survived, the State was obliged to preserve her life. The same institutional structure therefore assumed two apparently opposing functions: first, to terminate life; second, to protect life.
The paradox should not be overstated. The legal system can distinguish between a lawful execution and a medical duty arising when an execution fails. There is no necessary contradiction in positive law. But there is a profound moral ambiguity in the State’s simultaneous character as protector and terminator of life.
The central question is consequently not whether Tennessee’s execution protocol was technically defective. That question is important and should be independently investigated. Nor is the central question whether Pike’s conviction should be reopened merely because the execution failed. The jurisprudential question lies deeper.
It concerns the nature of State power.
A democratic State is ordinarily understood as an institution created to protect life, liberty and security through law. It possesses coercive power because individuals surrender certain forms of private retaliation to an impartial public authority. The State therefore distinguishes itself from the individual offender through its commitment to law and restraint. When the State deliberately kills, it enters the same physical terrain as the offender while asserting that the legal authority behind the act transforms its moral character.
Kant might say that justice demands retribution. Bentham would ask whether the suffering imposed is justified by its consequences. Mill would examine the relationship between coercion, harm and liberty. Hegel would inquire whether punishment restores the violated right. Rawls would ask whether the institution could be justified from the standpoint of persons who do not know whether they will occupy the position of victim, offender or official. Each philosophical framework therefore illuminates a different dimension of the problem.
My Take
None provides an uncomplicated answer. And that is precisely why the Pike episode is significant.
The ambiguity is not that Tennessee simultaneously believed Pike should die and should live in some logically incoherent sense. The legal system had already determined the circumstances under which her life could be terminated. The ambiguity is that the same State, while claiming authority to terminate her life, remained bound to recognise her continuing humanity.
The episode therefore compels us to distinguish between a person and a sentence. A sentence is a legal conclusion. A person is a human reality. The former may be final in law, but the latter does not cease to exist because a court has pronounced judgment.
The deepest question is consequently one of legitimacy rather than legality. The rule of law can tell us how an execution is to be authorized, reviewed and carried out. It can tell us which officials possess authority and which procedures must be followed. It cannot, by procedure alone, answer the philosophical question whether the deliberate taking of life by the State is itself an appropriate form of justice.
The question that remains is therefore more profound than whether Tennessee should improve its execution protocol. It is whether a legal order founded upon human dignity and the rule of law should regard the deliberate termination of a human life as an appropriate expression of justice.
There is no universally accepted philosophical answer. Kant can be read as supplying a powerful justification for retribution; Bentham can require a consequential demonstration of social utility; Mill can insist that coercion be justified by harm and constrained by liberty; Hegel can understand punishment as the restoration of right; Rawls can require institutions to be assessed from the standpoint of free and equal persons who do not know which side of the legal machinery they will occupy.
The ambiguity exposed by Christa Pike is therefore not merely the ambiguity of a failed execution. It is the ambiguity of a State that claims simultaneously to be the guardian of life and the authorized terminator of life.
The law can resolve that ambiguity formally by declaring execution lawful. Philosophy asks whether legality is sufficient.
And that is perhaps the most enduring lesson of the episode: a sentence may determine what the State is permitted to do; it does not, by the mere fact of its legality, answer what justice requires the State to do.
