State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459; 67 S. Ct. 374; 91 L. Ed. 422 (1947)

Facts—Louisiana convicted Willie Francis, an African American citizen, of murder in September 1945 and sentenced him to be electrocuted for the crime. Upon a proper death warrant, Francis was prepared for execution on May 3, 1946, and was placed in the electric chair of the state of Louisiana in the presence of the authorized witnesses. The executioner pulled the switch, but, because of mechanical difficulty, death did not result. The governor of Louisiana issued a new death warrant fixing the execution for May 9, 1946. Because of this, an appeal was made and execution of the sentence was delayed.

Question—Did issuing a new death warrant after a failed electrocution constitute double jeopardy and cruel and unusual punishment?


ReasonsJ. Reed (5–4). First, there was no case of double jeopardy: “We see no difference from a constitutional point of view between a new trial for error of law at the instance of the state that results in a death sentence instead of imprisonment for life and an execution that follows a failure of equipment.” Second, there was no unusual and cruel punishment involved in this case. The petitioner claimed that the psychological strain was cruel and unusual punishment. The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. Mechanical failure did not constitute unusual or cruel punishment. Third, there was no denial of equal protection of the laws. The state of Louisiana did not single out Francis for special treatment. Equal protection does not extend to accidents. There was no evidence in any of the papers to show any violation of petitioner’s constitutional rights.

J. Butler argued in dissent that the Court had given inadequate attention to the degree to which the application of electrical current to the appellee had already inflicted punishment upon him

Note—Although voting against Francis, the Court virtually incorporated the cruel and unusual punishment provisions of the Eighth Amendment into the due process clause of the Fourteenth. The incorporation was definitely accomplished in Robinson v. California, (370 U.S. 660 (1962). The Court ruled that it is cruel and unusual punishment to put a convicted criminal to death while he is insane, Ford v. Wainwright, 477 U.S. 399 (1986) or to impose a mandatory death penalty on a prison inmate convicted of murder while serving a life sentence without chance of parole, Sumner v. Shuman, 483 U.S. 66 (1987).

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