Tennessee's Execution of Christa Pike Fails After Two Lethal Doses
A State That Cannot Kill Cleanly Has No Right To Kill At All
Tennessee’s failed execution of Christa Pike exposes a power over life that has slipped its lawful bounds and turned into naked arbitrariness.
The scene, as it is reported, ought to chill any friend of lawful government. Tennessee sought to put Christa Pike to death for a murder committed decades ago. It employed a method called lethal injection, first administering one set of syringes meant to extinguish her life, then a second, because the first did not achieve that terrible end. After both, she remained alive, breathing and audibly so, and is now said to be in critical condition. The state’s own written protocol, we are told, anticipates a second set of syringes, but “does not spell out what happens if the subject is alive after the second set.” In that silence, one sees not justice, but power groping in the dark.
When I wrote in the Second Treatise that political power is a right of making laws with penalties of death only for the public good, I meant to confine it strictly. Men, by nature free, equal, and independent, never put themselves under government to be exposed to another’s will, but to be defended in their lives, liberties, and estates by settled rules and known judges. If, therefore, a government claims authority to kill one of its members, it must show that such killing is both necessary to the safety of the rest and carried out under clear, standing law. The mere fact that a court has pronounced sentence does not suffice; for a sentence unjustly executed, or executed by unlawful means, is but another private act of force dressed in public clothes.
Two points here deserve to be separated. First, there is the question whether the death penalty as such can be reconciled with the law of nature, which, as I once phrased it, teaches that no one ought to harm another in his life, health, liberty, or possessions. I allowed that he who has committed murder may, by his own act, forfeit his life to the community whose peace he has violated, for the preservation of the innocent may sometimes require severe examples. But that allowance was never a warrant for cruelty, nor for experiments on the border of torture. It was an exception to a rule grounded in all men’s being the workmanship of one wise Maker, sent into the world about His business, not each other’s.
Secondly, there is the manner in which this power is administered. Here the reports of “botched” executions, and especially of this one, bear heavily. Lethal injection, you tell me, is commonly used where the death penalty is legal, and it is not uncommon that it fails in some part of its design. In this case, the state had foreseen failure of the first attempt and kept a second set of syringes ready. But it expressly failed to state what must occur if, after this second infliction, life remained. This is not a small omission. To threaten a man with death, and then to subject him to an indeterminate series of agonies until someone, under pressure and without rule, decides whether to continue or stop, is to deliver him over to arbitrary power in its naked form.
For the essence of arbitrary power is not merely that it harms, but that it harms by discretion, without a known measure, and that those who wield it are judges in their own case. In a well-ordered commonwealth, the condemned man, though he face the greatest penalty, must still stand under a law that declares, beforehand and in plain terms, what shall be done, by whom, and with what limits, and must have some impartial judge to appeal to if that law be exceeded. Here, by contrast, the law falls silent at the very point where the prisoner’s remaining life and health are most at stake. Officials are left to improvise, perhaps to halt, perhaps to persist, with no rule but their own fear, anger, or fatigue. Can any free people have consented to be so exposed?
Some will answer that the cruelty of the original crime, the long years since, and the suffering of the victim’s family justify a hard and imperfect business; that no human procedure can be made entirely clean, and that to abandon the penalty because some executions go awry is to forget the dead. I do not slight the grief of those who have lost a child to murder; in their place, many men would demand more blood than any civil law allows. Yet this is the very reason why we erect governments and courts—to restrain vengeance by reason, not to baptize it. If the method chosen to vindicate the law regularly produces what observers call “torturous” scenes, and if its own protocol cannot even say what shall be done when it fails twice in a row, then the doubt is not about a single accident, but about a settled practice that no longer deserves the name of justice.
The power of death, once claimed, is not easily unclenched. Prerogative, when allowed for some supposed necessity, always pleads that necessity again when its fruits are questioned. So here, one may expect officials to argue that they must retain discretion for rare and unforeseen cases, and that public safety requires no weakening of the terror of the law. Yet prerogative, as I argued before, is tolerable only while the public visibly benefits and the people remain able to recall it. A regime of executions in which “botched” attempts are not uncommon, and in which the written rule deserts the prisoner at the point of maximum suffering, does not benefit the public; it accustoms them to a long train of abuses in which the most sacred of rights, life itself, is handled carelessly. Where that is so, the people do not merely debate policy; they are entitled, by the very terms of the political trust, to demand reform, suspension, or abolition of such power. A state that cannot kill cleanly has, by that very confession, shown that it ought to rethink whether it should kill at all.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The law of nature — reason — binds everyone, rulers included: no one ought to harm another in his life, health, liberty, or possessions. A positive law that violates it is not law but force.
- Second Treatise of Government — Prerogative as revocable emergency discretion — legitimate exactly as long as the public visibly benefits and no longer.