With botched executions in the headlines, let’s talk about the death penalty law in Tennessee.

Tennessee has been executing people – off and on – since it was established as a state in 1796 but didn’t pass a formal law setting out the rules surrounding imposition of the death penalty until 1977. By then, 335 executions had been documented. Since then, 17 have been carried out in Tennessee.

Hanging was the primary method of execution in Tennessee until 1913, when the electric chair was deemed the preferred means. Tennessee switched to lethal injection as its primary method in 2000 – though death row inmates convicted before then could still ask for the electric chair. Last year, the state switched from a three-drug protocol in its lethal injections to a single dose of pentobarbital.

There have been botched executions in Tennessee throughout its history, but killer Christa Gail Pike earlier this year became the first person to survive two back-to-back lethal injections. She was hospitalized but has since recovered enough to be returned to death row. The state must now decide whether to try to execute her again.

Executions, of course, grab attention, but I would argue that few people know the ins and outs of how a person winds up sentenced to die in Tennessee. So, let’s talk about it.

What crimes qualify?

Not every killing is a murder, and not every murder qualifies for imposition of the death penalty. Under Tennessee law, the state can only seek the death penalty in cases of first-degree murder (premeditated), felony murder (killing in carrying out a dangerous felony), a terroristic killing or killing using a destructive device.

In 2024, the Tennessee Legislature added child rape as a qualifying crime. That provision has not yet been tested. The U.S. Supreme Court through its rulings has exempted juveniles and adults with an IQ below 70 from execution.

But while the death penalty is authorized for the above-listed crimes, it is not automatic in any of those cases.

Who decides?

It is up to a single person to decide whether the death penalty should be sought – the elected district attorney general in each of Tennessee’s 32 judicial districts.

The DA must file notice and list a reason why that particular case is being singled out for the ultimate penalty. The law sets out 19 reasons – called statutory aggravating factors. A DA need only show proof of one.

Most of the factors rely on objective facts as the basis. For instance, was the killer already behind bars when a new murder was carried out? Was the victim a law enforcer, paramedic or emergency worker carrying out their duties?

Other objective factors include the killing of an elderly person or a child, and the murder of a judge, DA or elected officeholder in retaliation for doing their jobs. Killing for money or to avoid arrest or escape custody also qualifies as an aggravating factor.

There is one catch-all factor, though, that is subjective, requiring the DA to make a judgment call. Was the killing “especially heinous, atrocious or cruel?” The law does not define that phrase or explain what makes one killing more “heinous, atrocious or cruel” than another.

Does the condemned get a say?

The law also sets out what are labeled “mitigating factors” that the accused can use to argue against imposition of the death penalty. There are only nine of those.

Did the accused have a relatively clean record? Was the killing committed while the accused was experiencing a mental health disturbance or crisis? Was the accused a bit player in the case – a getaway driver, for instance? Was the accused young or under the sway of an older, coercive person?

Here, too, there is a catch-all factor – “any other mitigating factor that is raised by the evidence.” The law doesn’t define that phrase either.

What happens next?

Just as not every killing is a murder, not every potential juror is “qualified” under the law to decide death penalty cases. And when it comes to that qualification process, justice is not blind.

In death penalty cases, potential jurors are asked if they can and will impose the death penalty – before the case is even tried. Any potential jurors who say they can’t or won’t impose the death penalty are disqualified.

Defense attorneys have long argued that this “qualification” process creates jury pools primed to convict and execute, but so far the process has survived legal challenge.

Once a “death-qualified” jury of 12 citizens is seated, those jurors must first decide whether the accused is guilty of the crime alleged. Prosecutors must prove guilt beyond a “reasonable” doubt to the satisfaction of all 12 jurors.

Then, a second trial with the same jury immediately takes place. It looks very much like a guilt-phase trial. There are opening statements, witnesses, exhibits and closing arguments. But it is far different in practice.

In this trial, prosecutors must mount proof to back up the aggravating factor or factors they listed in the death penalty notice. The defense can also put on evidence to support the mitigating factors believed to apply.

It is then up to the jury to weigh those factors.

If the jury unanimously concludes the state failed to prove an aggravating factor, the accused cannot be put to death and instead must be sentenced to life with the possibility of parole after serving 51 years.

If the jury unanimously concludes that mitigating factors outweigh aggravating factors, the panel can sentence the accused to either life with the possibility of parole or life without parole.

If the jury unanimously concludes that aggravating factors outweigh mitigating ones, the panel must impose death.

Jamie Satterfield is an investigative journalist covering crime, courts and the stories behind the headlines. She writes Let’s Talk: Law for KnoxTNToday, digging deeper to uncover the story behind the story.

Read more of Jamie Satterfield’s columns and learn more about her in her author bio on her KnoxTNToday author page. Follow her investigative reporting on Substack.

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