329 U.S. 459 (1947), 142, Louisiana ex rel. Francis v. Resweber

Docket Nº:No. 142
Citation:329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422
Party Name:Louisiana ex rel. Francis v. Resweber
Case Date:January 13, 1947
Court:United States Supreme Court

Page 459

329 U.S. 459 (1947)

67 S.Ct. 374, 91 L.Ed. 422

Louisiana ex rel. Francis



No. 142

United States Supreme Court

Jan. 13, 1947

Argued November 18, 1946



Petitioner was convicted in a state court of murder and sentenced to be electrocuted. A warrant for his execution was duly issued. He was prepared for electrocution, placed in the electric chair and subjected to a shock which was intended to cause his death, but which failed to do so, presumably because of some mechanical difficulty. He was removed from the chair and returned to prison; but another warrant for his execution at a later date was issued.


1. Assuming, but not deciding, that violations of the principles of the double jeopardy provision of the Fifth Amendment and the cruel and unusual punishment provision of the Eighth Amendment would violate the due process clause of the Fourteenth Amendment --

(a) The proposed execution would not violate the double jeopardy clause of the Fifth Amendment. P. 462.

(b) It would not violate the cruel and unusual punishment clause of the Eighth Amendment. P. 463.

Page 460

2. The proposed execution would not violate the equal protection clause of the Fourteenth Amendment. P. 465.

3. The record of the original trial, showing the warrant of arrest, the indictment, the appointment of counsel, and the minute entries of trial, selection of jury, verdict, and sentence, contains nothing on which this Court could conclude that the constitutional rights of petitioner were infringed at the trial. P. 465.


The Supreme Court of Louisiana denied petitioner's applications for writs of certiorari, mandamus, prohibition and habeas corpus to prevent a second attempt to execute him for murder. This Court granted certiorari. 328 U.S. 833. Affirmed, p. 466.

REED, J., lead opinion

MR. JUSTICE REED announced the judgment of the Court in an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE JACKSON join.

This writ of certiorari brings before this Court a unique situation. The petitioner, Willie Francis, is a colored citizen of Louisiana. He was duly convicted of murder, and, in September, 1945, sentenced to be electrocuted for the crime. Upon a proper death warrant, Francis was prepared for execution and on May 3, 1946, pursuant to the warrant, was placed in the official electric chair of the State of Louisiana in the presence of the authorized witnesses. The executioner threw the switch, but, presumably because of some mechanical difficulty, death did not result. He was thereupon removed from the [67 S.Ct. 375] chair and returned to prison, where he now is. A new death warrant was issued

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by the Governor of Louisiana, fixing the execution for May 9, 1946.

Applications to the Supreme Court of the state were filed for writs of certiorari, mandamus, prohibition and habeas corpus, directed to the appropriate officials in the state. Execution of the sentence was stayed. By the applications, petitioner claimed the protection of the due process clause of the Fourteenth Amendment on the ground that an execution under the circumstances detailed would deny due process to him because of the double jeopardy provision of the Fifth Amendment and the cruel and unusual punishment provision of the Eighth Amendment.1 These federal constitutional protections, petitioner claimed, would be denied because he had once gone through the difficult preparation for execution, and had once received through his body a current of electricity intended to cause death. The Supreme Court of Louisiana denied the applications on the ground of a lack of any basis for judicial relief. That is, the state court concluded there was no violation of state or national law alleged in the various applications. It spoke of the fact that no "current of sufficient intensity to cause death" passed through petitioner's body. It referred specifically to the fact that the applications of petitioner invoked the provisions of the Louisiana Constitution against cruel and inhuman punishments and putting one in jeopardy of life or liberty twice for the same offense. We granted certiorari on a petition setting forth the aforementioned contentions to consider the alleged violations of rights under the Federal Constitution in the unusual circumstances of this case. 328 U.S. 833. For matters of state law, the opinion

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and order of the Supreme Court of Louisiana are binding on this Court, Hebert v. Louisiana, 272 U.S. 312, 317. So far as we are aware, this case is without precedent in any court.

To determine whether or not the execution of the petitioner may fairly take place after the experience through which he passed, we shall examine the circumstances under the assumption, but without so deciding, that violation of the principles of the Fifth and Eighth Amendments as to double jeopardy and cruel and unusual punishment would be violative of the due process clause of the Fourteenth Amendment.2 As nothing has been brought to our attention to suggest the contrary, we must and do assume that the state officials carried out their duties under the death warrant in a careful and humane manner. Accidents happen for which no man is to blame. We turn to the question as to whether the proposed enforcement of the criminal law of the state is offensive to any constitutional requirements to which reference has been made.

First. Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense. Ex parte Lange, 18 Wall. 163, 168, 175; In re Bradley, 318 U.S. 50. Compare United States v. Lanza, 260 U.S. 377, 382. But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. United States v. Ball, 163 U.S. 662, 672. See People v. Trezza, 128 N.Y. 529, 535, 28 N.E. 533. Even where a state obtains a new trial after conviction because of errors, while an accused may be placed [67 S.Ct. 376] on trial a second time, it is not the sort of hardship to the accused that is forbidden by the Fourteenth Amendment.

Page 463

Palko v. Connecticut, 302 U.S. 319, 328.3 As this is a prosecution under state law, so far as double jeopardy is concerned, the Palko case is decisive. For 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. When an accident, with no suggestion of malevolence, prevents the consummation of a sentence, the state's subsequent course in the administration of its criminal law is not affected on that account by any requirement of due process under the Fourteenth Amendment. We find no double jeopardy here which can be said to amount to a denial of federal due process in the proposed execution.

Second. We find nothing in what took place here which amounts to cruel and unusual punishment in the constitutional sense. The case before us does not call for an examination into any punishments except that of death. See Weems v. United States, 217 U.S. 349. The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Prohibition against the wanton infliction of pain has come into our law from the Bill of Rights of 1688. The identical words appear in our Eighth Amendment. The Fourteenth would prohibit by its due process clause execution by a state in a cruel manner.4

Page 464

Petitioner's suggestion is that, because he once underwent the psychological strain of preparation for electrocution, now to require him to undergo this preparation again subjects him to a lingering or cruel and unusual punishment. Even the fact that petitioner has already been subjected to a current of electricity does not make his subsequent execution any more cruel in the constitutional sense than any other execution. 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. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain, nor any unnecessary pain involved in the proposed execution. The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block. We cannot agree that the hardship imposed upon the petitioner rises to that level of [67 S.Ct. 377] hardship denounced as denial of due process because of cruelty.

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Third. The Supreme Court of Louisiana also rejected petitioner's contention that death inflicted after his prior sufferings would deny him the equal protection of the laws, guaranteed by the Fourteenth Amendment. This suggestion, insofar as it differs from the due process argument, is based on the idea that execution, after an attempt at execution has failed, would be a more severe punishment than is imposed upon others guilty of a like offense. That is, since others do not go through the strain of preparation for execution a second time or have not experienced a nonlethal current in a prior attempt at execution, as petitioner did, to compel petitioner to submit to execution after these prior experiences denies to him equal protection. Equal protection does not protect a prisoner against even illegal acts of officers in charge of him, much less against accidents during his detention for execution. See Lisenba v. California, 314 U.S. 219, 226. Laws cannot prevent accidents, nor can a law equally protect all against them. So long as...

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