Tennessee officials could still choose to execute Christa Pike even after she survived the first two doses of a lethal injection drug last week, legal experts say.
Pike, 50, received two typically lethal doses of pentobarbital during a botched execution attempt in Nashville on September 30.
Her legal team revealed she was conscious and “speaking” six days after being rushed to hospital.
That would make her the first person to survive the administration of lethal injection drugs, according to the Death Penalty Information Center.
Pike was sentenced to death for the murder of a classmate, Colleen Slemmer, in 1996, a crime committed when she was 18 years old.
In the aftermath of the execution attempt, Tennessee Governor Bill Lee has ordered a third-party review of what went wrong.
Paul Lucas, an associate professor at East Carolina University, said the review would likely determine “what happens next.”
“If the investigation identifies problems with how the protocol was implemented, the state may focus on correcting those procedures,” he said.
“If officials followed the protocol as written and the execution nevertheless failed, that could raise more fundamental questions about the protocol itself.
“Either way, I would expect the circumstances surrounding Ms Pike’s failed execution to receive significant scrutiny before Tennessee resumes executions.”
While it remains unclear what exactly went wrong during the execution, experts have speculated the drug entered the tissue in Pike’s arm instead of entering her bloodstream.
Pike complained of her arm feeling like it was “about to burst open,” according to an emergency court filing after the attempt.
Her legal team has alleged at least seven syringes were used during attempts to establish an IV line, with at least one being “bent in a 90-degree angle.”
They had previously raised concerns about Pike’s health, including conditions which made lethal injection a riskier procedure.
“Upon arrival [to hospital] both of her arms were swollen, burned and blistered,”
court documents said.
“Apparently at no point did any member of the execution team realize that the IV lines were not correctly placed or that the veins had blown and that the pentobarbital was … entering Ms Pike’s body.”
Tennessee has paused all executions for the rest of the year, and the head of its Department of Corrections has resigned.
Dr Lucas said he was “hesitant” to predict what the state would do next.
“There are still too many unresolved questions, beginning with Ms Pike’s medical condition and the findings of the independent review,” he said.
“If the state does seek another execution, I would expect substantial litigation concerning whether another attempt can be carried out constitutionally given what occurred during the first one.”
The long-term ramifications, he added, could extend “beyond Tennessee.”
“A failed execution of this magnitude provides courts, policymakers, and other states with a real-world example through which to evaluate [lethal injection procedures],” he said.
“At a time when public support for capital punishment has generally declined from its historical highs, an event like this may also intensify the [debate about] how the death penalty is administered.
“Legally … changes in public attitudes do not by themselves determine a particular execution method is unconstitutional.”
The Death Penalty Information Center’s executive director Robin Maher said a second attempt was “uncharted territory.”
“The US Supreme Court has not decided whether a second execution attempt would violate the Constitution since 1947,” she told USA Today.
“These are questions that have never needed to be asked before and no-one knows the answers.”
Pike’s recovery was “medically unprecedented,” according to a statement released by her attorneys.
“We continue to ask the Governor of Tennessee to commute Christa Pike’s sentence to life imprisonment without the possibility of parole,” they said.
If Tennessee did decide to attempt another execution, it would not be the first time.
In May, death row inmate Tony Carruthers’ execution was called off after medical personnel could not establish an intravenous [IV] line after more than an hour of trying.
His lawyers challenged the qualifications of the doctor tasked with establishing IV access, Dr Mark Walton Fowler.
In an October deposition, Dr Fowler said he had no current hospital privileges and had last placed a central line more than a decade ago.
Dr Fowler said in an August interview with Fox News he would be overseeing Pike’s execution, something later confirmed by the Death Penalty Information Center.
Carruthers, who was sentenced to death for a 1994 triple murder, was granted a one-year reprieve following the attempt.
Giving Pike life in prison seemed to be “the most obvious recourse”, Fordham Law School professor Deborah Denno told CNN.
“Maybe [that’s] a decision that would go up to the United States Supreme Court,” she said.
“We certainly have seen a couple of instances of an inmate who has survived to be executed finally again.
“But that’s highly problematic, and I can’t imagine that happening in this kind of situation.
“Even if somebody is for the death penalty and thinks certain people deserve it, what happened to Christa Pike was never supposed to take place.”
A hearing has been scheduled for 11am on October 7, local time.
Pike’s legal team was expected to hold another press conference sometime that afternoon.