State of Louisiana Francis v. Resweber, No. 142

CourtUnited States Supreme Court
Writing for the CourtMr. Justice REED announced the judgment of the Court in an opinion in which The CHIEF JUSTICE; FRANKFURTER; Mr. Justice BURTON, with whom Mr. Justice DOUGLAS
Citation91 L.Ed. 422,329 U.S. 459,67 S.Ct. 374
PartiesSTATE OF LOUISIANA ex rel. FRANCIS v. RESWEBER, Sheriff, et al
Decision Date13 January 1947
Docket NumberNo. 142

329 U.S. 459
67 S.Ct. 374
91 L.Ed. 422
STATE OF LOUISIANA ex rel. FRANCIS

v.

RESWEBER, Sheriff, et al.

No. 142.
Argued Nov. 18, 1946.
Decided Jan. 13, 1947.
Rehearing Denied Feb. 10, 1947.
See 330 U.S. 853, 67 S.Ct. 673.

Page 460

Mr.James Skelly Wright, of New Orleans, La., for petitioner.

Messrs. Michael E. Culligan, of New Orleans, La., and L. O. Pecot, of Franklin, La., for respondents.

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 chair and returned to prison where he now is. A new death warrant was issued

Page 461

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

Applications to the Supreme Court of he 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. State of Louisiana ex rel. Francis v. Resweber, 328 U.S. 833, 66 S.Ct. 1382. For matters of state law, the opin-

Page 462

ion and order of the Supreme Court of Louisiana are binding on this Court. Hebert v. State of Louisiana, 272 U.S. 312, 317, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48 A.L.R. 1102. 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, 21 L.Ed. 872; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500. Compare United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314. 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, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. See People v. Trezza, 128 N.Y. 529, 535, 28 N.E. 533, 534. Even where a state obtains a new trial after conviction because of errors, while an accused may be placed on trial a second time, it is not the sort of hardship to the ac used that is forbidden by the Fourteenth Amendment.

Page 463

Palko v. State of Connecticut, supra, 302 U.S. at page 328, 58 S.Ct. at page 153, 82 L.Ed. 288.3 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, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705. 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 h 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 hardship denounced as denial of due process because of cruelty.

Page 465

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 in so far 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. People of State of California, 314 U.S. 219, 226, 62 S.Ct. 280, 285, 86 L.Ed. 166. Laws cannot prevent accidents nor can a law equally protect all against them. So long as the law applies to all alike, the requirements of equal protection are met. We have no right to assume that Louisiana singled out Francis for a treatment other than that which has been or would generally be applied.

Fourth. There is a suggestion in the brief that the original trial itself was so unfair to the petitioner as to justify a reversal of the judgment of conviction and a new trial. Petitioner's claim in his brief is that he was inadequately represented by counsel. The record of the original trial presented to us shows the warrant for arrest, the indictment, the appointment of counsel and the minute entries of trial, selection of jury, verdict and sentence. There is nothing in any of these papers to show any violation of petitioner's constitutional rights. See Carter v. People of State of Illinois, 329 U.S. 173, 67 S.Ct. 216. Review is sought here because of a denial of due process of law that would be brought about by execution of petitioner after failure of the first effort to electrocute him. Nothing is before us upon which a ruling

Page 466

can be predicated as to alleged denial of federal constitutional rights during petitioner's trial....

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431 practice notes
  • Roper v. Simmons, No. 03-633.
    • United States
    • United States Supreme Court
    • March 1, 2005
    ...408 U. S. 238, 239 (1972) (per curiam); Robinson v. California, 370 U. S. 660, 666-667 (1962); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (plurality opinion). As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to......
  • Baze v. Rees, No. 07–5439.
    • United States
    • United States Supreme Court
    • April 16, 2008
    ...example, the Court has held that an isolated mishap alone does not violate the Eighth Amendment, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463–464, 67 S.Ct. 374, 91 L.Ed. 422, because such an event, while regrettable, does not suggest cruelty or a “substantial risk of serious har......
  • U.S. v. Quinones, Docket No. 02-1403(L).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 10, 2002
    ...the power of the State to protect the lives, liberties, and property of its citizens"); State of Louisiana ex rel Francis v. Resweber, 329 U.S. 459, 470, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (Frankfurter, J., concurring) (rejecting a petitioner's claim that Louisiana's second attempt at execut......
  • Estate of Lockett v. Fallin, No. 15-6134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 15, 2016
    ...demonstrate an ‘objectively intolerable risk of harm’ that officials may not ignore.” Id. (quoting Louisiana ex rel. Francis v. Resweber , 329 U.S. 459, 470, 67 S.Ct. 374, 91 L.Ed. 422 (1947) and Farmer v. Brennan , 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ) (citations omit......
  • Request a trial to view additional results
426 cases
  • Roper v. Simmons, No. 03-633.
    • United States
    • United States Supreme Court
    • March 1, 2005
    ...408 U. S. 238, 239 (1972) (per curiam); Robinson v. California, 370 U. S. 660, 666-667 (1962); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (plurality opinion). As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to......
  • Baze v. Rees, No. 07–5439.
    • United States
    • United States Supreme Court
    • April 16, 2008
    ...example, the Court has held that an isolated mishap alone does not violate the Eighth Amendment, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463–464, 67 S.Ct. 374, 91 L.Ed. 422, because such an event, while regrettable, does not suggest cruelty or a “substantial risk of serious har......
  • U.S. v. Quinones, Docket No. 02-1403(L).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 10, 2002
    ...the power of the State to protect the lives, liberties, and property of its citizens"); State of Louisiana ex rel Francis v. Resweber, 329 U.S. 459, 470, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (Frankfurter, J., concurring) (rejecting a petitioner's claim that Louisiana's second attempt at execut......
  • Estate of Lockett v. Fallin, No. 15-6134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 15, 2016
    ...demonstrate an ‘objectively intolerable risk of harm’ that officials may not ignore.” Id. (quoting Louisiana ex rel. Francis v. Resweber , 329 U.S. 459, 470, 67 S.Ct. 374, 91 L.Ed. 422 (1947) and Farmer v. Brennan , 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ) (citations omit......
  • Request a trial to view additional results
5 books & journal articles
  • Capital Punishment and the Mentally Retarded Offender
    • United States
    • Prison Journal, The Nbr. 84-3, September 2004
    • September 1, 2004
    ...mentalretardation. RetrievedOctober 15, 2001, from www.hrw.orgIn re Kemmler, 136 U.S. 436 (1890).Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).McCarver v. North Carolina, 532 U.S. 941 (2001a).McCarver v. North Carolina, 533 U.S. 975 (2001b).Olmstead v. L.C., 527 U.S. 581 (1999)......
  • How Would You Like to Die? Glossip v. Gross Deals Blow to Abolitionists
    • United States
    • Prison Journal, The Nbr. 98-1, January 2018
    • January 1, 2018
    ...re Kemmler, 136 U.S. 436 (1890).Kennedy v. Louisiana, 554 U.S. 407 (2008).Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).Malik, S. C., & Holdsworth, D. P. (2015). A survey of the history of the death penalty in the United States. University of Richmond Law Review, 49, 693-710. A......
  • The Execution of Wallace Wilkerson
    • United States
    • Criminal Justice Review Nbr. 42-4, December 2017
    • December 1, 2017
    ...& N. H. Rafter, Trans.). Durham, NC: Duke University Press.(Original work published 1876)Louisiana ex rel. Francis v. Resweber (1947). 329 U.S. 459.Lyman, B. (2016, November 7). Billwould bring firing squad executions to Alabama. Montgomery Advertiser.Accessed December 6, 2016, from http://......
  • Book Review: The Past as prologue: The supreme court’s pre-modern death penalty jurisprudence and its influence on the supreme court’s modern death penalty decisions
    • United States
    • Criminal Justice Review Nbr. 39-1, March 2014
    • March 1, 2014
    ...reading. For example, the chapter on cruel and unusual punishment describes the case,Louisiana ex rel. Francis v. Resweber (329 U.S. 459, 1947), in which the Court held that a secondelectrocution conducted after the malfunctioned first attempt does not violate the Eighth Amend-ment’s prohib......
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