On Wednesday evening, the state of Tennessee attempted to execute Christa Pike for a brutal murder she committed, with two accomplices, in 1995. In what Robin Maher, the executive director of the Death Penalty Information Center, called “unlike any other botched execution in the modern era,” officials failed to execute Pike despite administering the execution drug, pentobarbital, twice. Exactly what happened is unclear, since officials repeatedly curtained off the witnesses, but her lawyers say she is now hospitalized, her condition unknown.

The next day, Gov. Bill Lee suspended all Tennessee executions for the rest of 2026, his second statewide moratorium over how executions are administered. That makes him the second Republican governor to do so, after Ohio’s Mike DeWine, who has suspended executions since 2019 over a different drug, midazolam (which also prompted Lee’s first moratorium, in 2022).

The suspension, however, does not mean Pike will not be executed. It just delays her killing by the state.

That might shock those who think repeatedly trying to execute someone should violate the Eighth Amendment’s ban on cruel and unusual punishment. But in 1947, in Louisiana ex rel. Francis v. Resweber, the Supreme Court held that repeated attempts do not necessarily violate the Eighth Amendment, at least as long as the errors are in “good faith” or reflect sincere mistakes; intentionally dragging out the process to torture or prolong pain could still be impermissible. That last part could open another argument against trying to execute Pike again.

Pentobarbital is quite controversial: the Biden administration banned it in federal executions over concerns it could cause too much pain, its domestic manufacturers refuse to sell it to states for executions and European manufacturers refuse to export it for the same (raising concerns that states’ aging supplies are even riskier), and it has been linked to multiple botched executions.

In other words, its ongoing use seems, at best, to reflect a malignant indifference to the risk of prolonged pain. But however morally compelling this argument, the Supreme Court, committed to upholding executions for decades, will likely be unmoved. In a somewhat circular argument, the Court has held that because it has held that executions are (abstractly) constitutional, some method must be constitutional too, which has led it to generally uphold various forms of lethal injection.

In short, anyone bothered by Tennessee repeatedly trying to execute Pike will find no help from the Supreme Court.

But there are two other options. In Pike’s case the chances are likely slim, but not zero, and the lessons apply to other states as well.

First, almost all state constitutions have their own versions of the Eighth Amendment, which state supreme courts interpret, and many have adopted readings more generous than the U.S. Supreme Court’s bracingly narrow view of the federal version. Plus, outside of Rhode Island, state supreme court justices all face some sort of election or retention process, making them more sensitive to popular outrage.

Tennessee’s court is relatively politically insulated, but its justices still face retention elections. And notably, even before Pike’s failed execution, nine Republican state legislators were among those calling for a moratorium over pentobarbital: the sort of political winds elected judges might not ignore. The state supreme court had already appointed an investigator to examine whether Pike’s execution could go wrong in just this way; while it signed off at the time, the failure and the political reaction could sway it.

Second, even if the state courts won’t intervene, the governor can, through clemency. That power varies by state, but in most states the governor has broad if not unfettered power to commute sentences.

In Tennessee, the governor receives non-binding recommendations from a clemency board. Lee has generally been stingy with clemency, but he has now imposed his second moratorium, and earlier this year he granted Tony Carruthers a one-year reprieve after officials couldn’t even insert an IV during his execution attempt.

Lee’s reticence likely reflects sincere “tough on crime” values, but governors generally have become far stingier with clemency than in the 1970s and 1980s, likely due in part to what’s been called the “Willie Horton Effect.”A 1988 presidential attack ad blamed Democratic nominee Michael Dukakis, then governor of Massachusetts, for a horrible crime committed by a man out of prison on a furlough program, despite the program’s nonrecidivism success rate of over 99%.

The lesson many took was “clemency is too risky, because one bad act can end your career.”Here, of course, that risk doesn’t apply, since clemency would likely mean life without parole for Pike. Beyond that, we tend to overstate the “Willie Horton” risk. Consider what I call the “Mike Huckabee Effect.”As governor of Arkansas, Huckabee bucked the trend and commuted over 1,000 sentences.

One beneficiary, Maurice Clemmons, years later murdered several police officers in cold blood. Some detractors tried to frame this as Huckabee’s “Willie Horton” moment, but it never stuck, evidence that governors likely have far more room for political risk on clemency than our narrative suggests.

While a majority of Americans still support the death penalty, such support is at its lowest levels since the 1970s, and botched executions like Pike’s will likely drive it lower. Life-tenured Supreme Court justices can ignore those Gallup polls; elected governors and state judges cannot. And putting naked politics aside, Lee, who has regularly put his Christian faith at the forefront, has the opportunity to decide if he wants to prevent a punishment that feels morally cruel and unusual, whatever the law itself might say.