Can the state execute a man who already survived?

Can the state execute a man who already survived? | Opinion

A second execution would be an unimaginable nightmare for Tony Carruthers and a moral horror for the rest of us.

Tony Carruthers is not supposed to be alive. On May 21, Tennessee set out to execute him.

It failed. Carruthers survived.

He is not the first person to survive an execution in the United States, and he won’t be the last. For Carruthers, the question is: Now what? Will the state seek to arrange a second execution?

A second execution would involve the kind of “superadded” pain that the Supreme Court has used to explain what the Eighth Amendment is meant to prohibit. Moreover, it would simply be an indecent and inhumane thing to do.

Carruthers now joins Romell Broom, Kenneth Smith and Thomas Creech, among others, whose executions by lethal injection were called off when the execution team ran into similar problems. But execution failures have not been confined to that method.

A history of failed executions

In the 19th century hangings occasionally failed. Replacing hangings as this country’s primary method of capital punishment did not put an end to the problem of failed executions. Once, in the twentieth century, the electric chair also failed to kill.

In that case, the state of Louisiana tried to use it in the execution of Willie Francis, a sixteen-year-old Black youth, who had been convicted of murdering a local sheriff. However, when the electric current reached him, he did not die. After that failure, Francis turned to the courts to try to stave off a return to the electric chair. His case ultimately went to the United States Supreme Court, which decided that a second execution would not be cruel.

Francis was electrocuted again in 1947. This time he died.

The precedent set in his case has haunted the case of every execution survivor since. But it was wrong when it was decided, and it is wrong now.

Justice Harold Burton, who dissented in Francis’s case, called what happened to Francis “torture” and said it is the “duty of the state officials to make sure that there was no failure.”

State-sanctioned torture must end

Torture is the right word to describe what happened to Tony Carruthers. “They poked and poked him more than a dozen times in his arms, legs, feet and chest,” First Assistant Federal Public Defender Amy Harwell said.

It was not just the physical pain inflicted on Carruthers as execution team members repeatedly jabbed him with needles that constitutes torture. It's also in the terror of preparing to die, only to have the state fail to do its “duty.”

As anti-death penalty activist Bryan Stevenson reminds us, “Most people can’t possibly imagine the agony of being credibly told that on this date, at this hour, you will be killed, only to go through the process of an execution and be physically abused before being sent back to your cell.”

Tennessee Gov. Bill Lee has given Carruthers a one-year reprieve. But defense lawyers have asked him to halt all executions in the state pending a thorough review of its protocol.

RELATED | Tennessee fails to execute Tony Carruthers after IV difficulties. State won't try again for a year

In the meantime, litigation filed in March 2025 already laid out a compelling case that the administration of lethal injection in Tennessee is constitutionally defective. The execution failure in Carruthers’ case offers even more evidence of its cruelty.

The courts should overrule the Francis decision and make clear that no one should ever face a second trip to the death chamber. A second execution would be an unimaginable nightmare for Tony Carruthers and a moral horror for the rest of us.

Source: tennessean.com, Austin Sarar, May 30, 2026. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde

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