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.
Held:
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.
329 U. S.
462.
(b) It would not violate the cruel and unusual punishment clause
of the Eighth Amendment. P.
329 U. S.
463.
Page 329 U. S. 460
2. The proposed execution would not violate the equal protection
clause of the Fourteenth Amendment. P.
329 U. S.
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.
329 U. S.
465.
Affirmed.
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.
329 U. S.
466.
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 329 U. S. 461
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. [
Footnote 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
Page 329 U. S. 462
and order of the Supreme Court of Louisiana are binding on this
Court,
Hebert v. Louisiana, 272 U.
S. 312,
272 U. S. 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. [
Footnote
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,
85 U. S. 168,
85 U. S. 175;
In re Bradley, 318 U. S. 50.
Compare United States v. Lanza, 260 U.
S. 377,
260 U. S. 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,
163 U. S. 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 on trial a second time, it
is not the sort of hardship to the accused that is forbidden by the
Fourteenth Amendment.
Page 329 U. S. 463
Palko v. Connecticut, 302 U. S. 319,
302 U. S. 328.
[
Footnote 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.
[
Footnote 4]
Page 329 U. S. 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 hardship denounced as denial
of due process because of cruelty.
Page 329 U. S. 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, 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,
314 U. S. 226.
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. Illinois, 329 U. S. 173.
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 329 U. S. 466
can be predicated as to alleged denial of federal constitutional
rights during petitioner's trial. On this record, we see nothing
upon which we could conclude that the constitutional rights of
petitioner were infringed.
Affirmed.
[
Footnote 1]
Fifth Amendment: ". . . nor shall any person be subject for the
same offence to be twice put in jeopardy of life or limb; . .
."
Eighth Amendment: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted."
[
Footnote 2]
See Twining v. New Jersey, 211 U. S.
78,
211 U. S. 99;
Palko v. Connecticut, 302 U. S. 319,
302 U. S. 324;
In re Kemmler, 136 U. S. 436,
136 U. S. 445;
Collins v. Johnston, 237 U. S. 502,
237 U. S.
510.
[
Footnote 3]
See Kepner v. United States, 195 U.
S. 100,
195 U. S. 129;
cf. United States v. Ball, 163 U.
S. 662,
163 U. S.
666-70.
[
Footnote 4]
This Court said of a similar clause embodied in the constitution
of New York,
In re Kemmler, 136 U.
S. 436,
136 U. S.
446:
". . . but the language in question as used in the constitution
of the State of New York was intended particularly to operate upon
the legislature of the State, to whose control the punishment of
crime was almost wholly confided. So that, if the punishment
prescribed for an offence against the laws of the State were
manifestly cruel and unusual, as burning at the stake, crucifixion,
breaking on the wheel, or the like, it would be the duty of the
courts to adjudge such penalties to be within the constitutional
prohibition."
It added, p.
136 U. S.
447:
"Punishments are cruel when they involve torture or a lingering
death; but the punishment of death is not cruel within the meaning
of that word as used in the Constitution. It implies there
something inhuman and barbarous, something more than the mere
extinguishment of life."
Louisiana has the same humane provision in its constitution.
Louisiana Constitution, Art. I, § 12. The
Kemmler case
denied that electrocution infringed the federal constitutional
rights of a convicted criminal sentenced to execution.
MR. JUSTICE FRANKFURTER, concurring.
When four members of the Court find that a State has denied to a
person the due process which the Fourteenth Amendment safeguards,
it seems to me important to be explicit regarding the criteria by
which the State's duty of obedience to the Constitution must be
judged. Particularly is this so when life is at stake.
Until July 28, 1868, when the Fourteenth Amendment was ratified,
the Constitution of the United States left the States free to carry
out their own notions of criminal justice, except insofar as they
were limited by Article I, § 10 of the Constitution which declares:
"No State shall . . . pass any Bill of Attainder, [or]
ex post
facto Law . . ." The Fourteenth Amendment placed no specific
restraints upon the States in the formulation or the administration
of their criminal law. It restricted the freedom of the States
generally, so that States thereafter could not "abridge the
privileges or immunities of citizens of the United States," or
"deprive any person of life, liberty, or property, without due
process of law," or "deny to any person within its jurisdiction the
equal protection of the laws."
These are broad, inexplicit clauses of the Constitution, unlike
specific provisions of the first eight amendments formulated by the
Founders to guard against recurrence of well defined historic
grievances. But broad as these clauses are, they are not
generalities of empty vagueness. They are circumscribed partly by
history and partly by the problems of government, large and
dynamic
Page 329 U. S. 467
though they be, with which they are concerned. The "privileges
or immunities of citizens of the United States" concern the dual
citizenship under our federal system. The safeguards of "due
process of law" and "the equal protection of the laws" summarize
the meaning of the struggle for freedom of English-speaking
peoples. They run back to Magna Carta, but contemplate no less
advances in the conceptions of justice and freedom by a progressive
society.
See the classic language of Mr. Justice Matthews
in
Hurtado v. California, 110 U.
S. 516,
110 U. S.
530-31.
When, shortly after its adoption, the Fourteenth Amendment came
before this Court for construction, it was urged that the
"privileges or immunities of citizens of the United States" which
were not to be abridged by any State were the privileges and
immunities which citizens theretofore enjoyed under the
Constitution. If that view had prevailed, the Privileges or
Immunities Clause of the Fourteenth Amendment would have placed
upon the States the limitations which the specific articles of the
first eight amendments had theretofore placed upon the agencies of
the national government. After the fullest consideration, that view
was rejected. The rejection has the authority that comes from
contemporaneous knowledge of the purposes of the Fourteenth
Amendment.
See Slaughter-House
Cases, 16 Wall. 36,
83 U. S. 67-68;
Davidson v. New Orleans, 96 U. S. 97. The
notion that the Privileges or Immunities Clause of the Fourteenth
Amendment absorbed, as it is called, the provisions of the Bill of
Rights that limit the Federal Government has never been given
countenance by this Court.
Not until recently was it suggested that the Due Process Clause
of the Fourteenth Amendment was merely a compendious reference to
the Bill of Rights whereby the States were now restricted in
devising and enforcing their penal code precisely as is the Federal
Government by the
Page 329 U. S. 468
first eight amendments. On this view, the States would be
confined in the enforcement of their criminal codes by those views
for safeguarding the rights of the individual which were deemed
necessary in the eighteenth century. Some of these safeguards have
perduring validity. Some grew out of transient experience or
formulated remedies which time might well improve. The Fourteenth
Amendment did not mean to imprison the States into the limited
experience of the eighteenth century. It did mean to withdraw from
the States the right to act in ways that are offensive to a decent
respect for the dignity of man, and heedless of his freedom.
These are very broad terms by which to accommodate freedom and
authority. As has been suggested from time to time, they may be too
large to serve as the basis for adjudication, in that they allow
much room for individual notions of policy. That is not our
concern. The fact is that the duty of such adjudication on a basis
no less narrow has been committed to this Court.
In an impressive body of decisions, this Court has decided that
the Due Process Clause of the Fourteenth Amendment expresses a
demand for civilized standards which are not defined by the
specifically enumerated guarantees of the Bill of Rights. They
neither contain the particularities of the first eight amendments
nor are they confined to them. That due process of law has its own
independent function has been illustrated in numerous decisions,
and has been expounded in the opinions of the Court which have
canvassed the matter most thoroughly.
See Hurtado v.
California, supra; Twining v. New Jersey, 211 U. S.
78;
Snyder v. Massachusetts, 291 U. S.
97;
Palko v. Connecticut, 302 U.
S. 319. Insofar as due process under the Fourteenth
Amendment requires the States to observe any of the immunities
"that are valid as against the federal government by force of the
specific pledges of particular amendments," it does so because
they
"have
Page 329 U. S. 469
been found to be implicit in the concept of ordered liberty, and
thus, through the Fourteenth Amendment, become valid as against the
states."
Palko v. Connecticut, supra, at
302 U. S.
324-25.
The Federal Bill of Rights requires that prosecutions for
federal crimes be initiated by a grand jury and tried by a petty
jury; it protects an accused from being a witness against himself.
The States are free to consult their own conceptions of policy in
dispensing with the grand jury, in modifying or abolishing the
petty jury, in withholding the privilege against self-crimination.
See Maxwell v. Dow, 176 U. S. 581;
Twining v. New Jersey, supra; Snyder v. Massachusetts, supra;
Palko v. Connecticut, supra, at
302 U. S. 323,
302 U. S. 324;
cf. Feldman v. United States, 322 U.
S. 487. In short, the Due Process Clause of the
Fourteenth Amendment did not withdraw the freedom of a State to
enforce its own notions of fairness in the administration of
criminal justice unless, as it was put for the Court by Mr. Justice
Cardozo, "in so doing, it offends some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked as fundamental."
Snyder v. Massachusetts, supra, at
291 U. S.
105.
A State may offend such a principle of justice by brutal
subjection of an individual to successive retrials on a charge on
which he has been acquitted. Such conduct by a State might be a
denial of due process, but not because the protection against
double jeopardy in a federal prosecution against which the Fifth
Amendment safeguards limits a State. For the disputations that are
engendered by technical aspects of double jeopardy as enshrined in
the Fifth Amendment,
see the majority and dissenting
opinions in
Ex parte
Lange, 18 Wall. 163, and
In re Bradley,
318 U. S. 50.
Again, a State may be found to deny a person due process by
treating even one guilty of crime in a manner that violates
standards of decency more or less universally accepted, though not
when it treats him
Page 329 U. S. 470
by a mode about which opinion is fairly divided. But the
penological policy of a State is not to be tested by the scope of
the Eighth Amendment, and is not involved in the controversy which
is necessarily evoked by that Amendment as to the historic meaning
of "cruel and unusual punishment."
See Weems v. United
States, 217 U. S. 349, and
particularly the dissenting opinion of White and Holmes, JJ.
Once we are explicit in stating the problem before us in terms
defined by an unbroken series of decisions, we cannot escape
acknowledging that it involves the application of standards of
fairness and justice very broadly conceived. They are not the
application of merely personal standards, but the impersonal
standards of society which alone judges, as the organs of Law, are
empowered to enforce. When the standards for judicial judgment are
not narrower than "immutable principles of justice which inhere in
the very idea of free government,"
Holden v. Hardy,
169 U. S. 366,
169 U. S. 389,
"fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions,"
Hebert v.
Louisiana, 272 U. S. 312,
272 U. S. 316,
"immunities . . . implicit in the concept of ordered liberty,"
Palko v. Connecticut, supra, at
302 U. S.
324-25, great tolerance toward a State's conduct is
demanded of this Court. Such were recently stated to be "the
controlling principles."
See Mr. Chief Justice Stone in
Malinski v. New York, 324 U. S. 401,
324 U. S. 438,
in connection with the concurring opinion in that case,
ibid., 324 U. S. 412,
324 U. S. 416,
324 U. S.
417.
I cannot bring myself to believe that for Louisiana to leave to
executive clemency, rather than to require, mitigation of a
sentence of death duly pronounced upon conviction for murder
because a first attempt to carry it out was an innocent
misadventure, offends a principle of justice "rooted in the
traditions and conscience of our people."
See Snyder v.
Massachusetts, supra, at
291 U. S. 105.
Short of
Page 329 U. S. 471
the compulsion of such a principle, this Court must abstain from
interference with State action no matter how strong one's personal
feeling of revulsion against a State's insistence on its pound of
flesh. One must be on guard against finding in personal disapproval
a reflection of more or less prevailing condemnation. Strongly
drawn as I am to some of the sentiments expressed by my brother
BURTON, I cannot rid myself of the conviction that, were I to hold
that Louisiana would transgress the Due Process Clause if the State
were allowed, in the precise circumstances before us, to carry out
the death sentence, I would be enforcing my private view, rather
than that consensus of society's opinion which, for purposes of due
process, is the standard enjoined by the Constitution.
The fact that I reach this conclusion does not mean that a
hypothetical situation, which assumes a series of abortive attempts
at electrocution or even a single, cruelly willful attempt, would
not raise different questions. When the Fourteenth Amendment first
came here for application, the Court abstained from venturing even
a tentative definition of due process. With wise forethought, it
indicated that what may be found within or without the Due Process
Clause must inevitably be left to
"the gradual process of judicial inclusion and exclusion, as the
cases presented for decision shall require, with the reasoning on
which such decisions may be founded."
Davidson v. New Orleans, supra, at
96 U. S. 104.
This is another way of saying that these are matters which depend
on "differences of degree. The whole law does so as soon as it is
civilized." Holmes, J., in
LeRoy Fibre Co. v. Chicago, M. &
St. P. R. Co., 232 U. S. 340,
232 U. S. 354.
Especially is this so as to questions arising under the Due Process
Clause. A finding that, in this case, the State of Louisiana has
not gone beyond its powers is, for me, not the starting point for
abstractly logical extension. Since I cannot say that it would be
"repugnant to the conscience of mankind,"
Page 329 U. S. 472
Palko v. Connecticut, supra, at
302 U. S. 323,
for Louisiana to exercise the power on which she here stands, I
cannot say that the Constitution withholds it.
MR. JUSTICE BURTON, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
MURPHY and MR. JUSTICE RUTLEDGE concur, dissenting.
Under circumstances unique in judicial history, the relator asks
this Court to stay his execution on the ground that it will violate
the due process of law guaranteed to him by the Constitution of the
United States. We believe that the unusual facts before us require
that the judgment of the Supreme Court of Louisiana be vacated, and
that this cause be remanded for further proceedings not
inconsistent with this opinion. Those proceedings should include
the determination of certain material facts not previously
determined, including the extent, if any, to which electric current
was applied to the relator during his attempted electrocution on
May 3, 1946. Where life is to be taken, there must be no avoidable
error of law or uncertainty of fact.
The relator's execution was ordered by the Governor of Louisiana
to take place May 3, 1946. O f the proceedings on that day, the
Supreme Court of Louisiana has said:
". . . between the Hours of 12:00 o'clock noon and 3:00 o'clock
p.m., Willie Francis was strapped in the electric chair and an
attempt was made to electrocute him, but, because of some defect in
the apparatus devised and used for electrocutions, the contrivance
failed to function, and, after an unsuccessful attempt to
electrocute Francis, he was removed from the chair."
Of the same proceedings, the State's brief says:
"Through a latent electrical defect, the attempt to electrocute
Francis failed, the State contending no
Page 329 U. S. 473
current whatsoever reached Francis' body, the relator contending
a current of electricity did pass through his body; but, in any
event, Willie Francis was not put to death."
On May 8, the death warrant was canceled, and the relator's
execution has been stayed pending completion of these proceedings.
The Governor proposes to issue another death warrant for the
relator's electrocution, and the relator now asks this Court to
prevent it for the reason that, under the present unique
circumstances, his electrocution will be so cruel and unusual as to
violate the due process clause of the Fourteenth Amendment to the
Constitution of the United States.
That Amendment provides: "nor shall any State deprive any person
of life, liberty or property, without due process of law; . . ."
When this was adopted in 1868, there long had been imbedded deeply
in the standards of this nation a revulsion against subjecting
guilty persons to torture culminating in death. Pre-constitutional
American history reeked with cruel punishment to such an extent
that, in 1791, the Eighth Amendment to the Constitution of the
United States expressly imposed upon federal agencies a mandate
that "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." Louisiana
and many other states have adopted like constitutional provisions.
See Section 12 of Article I of the Constitution of
Louisiana (1921).
The capital case before us presents an instance of the violation
of constitutional due process that is more clear than would be
presented by many lesser punishments prohibited by the Eighth
Amendment or its state counterparts. Taking human life by
unnecessarily cruel means shocks the most fundamental instincts of
civilized man. It should not be possible under the constitutional
procedure
Page 329 U. S. 474
of a self-governing people. Abhorrence of the cruelty of ancient
forms of capital punishment has increased steadily until, today,
some states have prohibited capital punishment altogether. It is
unthinkable that any state legislature in modern times would enact
a statute expressly authorizing capital punishment by repeated
applications of an electric current separated by intervals of days
or hours until finally death shall result. The Legislature of
Louisiana did not do so. The Supreme Court of Louisiana did not say
that it did. The Supreme Court of Louisiana said merely that the
pending petitions for relief in this case presented an executive,
rather than a judicial, question and, by that mistake of law, it
precluded itself from discussing the constitutional issue before
us.
In determining whether the proposed procedure is
unconstitutional, we must measure it against a lawful
electrocution. The contrast is that between instantaneous death and
death by installments -- caused by electric shocks administered
after one or more intervening periods of complete consciousness of
the victim. Electrocution, when instantaneous,
can be
inflicted by a state in conformity with due process of law.
In
re Kemmler, 136 U. S. 436. The
Supreme Court of Louisiana has held that electrocution, in the
manner prescribed in its statute, is more humane than hanging.
State ex rel. Pierre v. Jones, 200 La. 807, 9 So. 2d 42,
cert. denied, 317 U.S. 633.
See also Malloy v. South
Carolina, 237 U. S. 180.
The all-important consideration is that the execution shall be
so instantaneous and substantially painless that the punishment
shall be reduced, as nearly as possible, to no more than that of
death itself. Electrocution has been approved only in a form that
eliminates suffering.
The Louisiana statute makes this clear. It provides that:
"Every sentence of death imposed in this State shall be by
electrocution; that is, causing to pass
Page 329 U. S. 475
through the body of the person convicted a current of
electricity of sufficient intensity to cause death, and the
application and continuance of such current through the body of the
person convicted until such person is dead. . . ."
La.Code of Criminal Procedure (1928), Act No. 2, Art. 569, as
amended by § 1, Act No. 14, 1940.
It does not provide for electrocution by interrupted or repeated
applications of electric current at intervals of several days or
even minutes. It does not provide for the application of electric
current of an intensity less than that sufficient to cause death.
It prescribes expressly and solely for the application of a current
of sufficient intensity to cause death and for the continuance of
that application until death results. Prescribing capital
punishment, it should be construed strictly. There can be no
implied provision for a second, third or multiple application of
the current. There is no statutory or judicial precedent upholding
a delayed process of electrocution.
These considerations were emphasized in
In re Kemmler,
supra, when an early New York statute authorizing
electrocution was attacked as violative of the due process clause
of the Fourteenth Amendment because prescribing a cruel and unusual
punishment. In upholding that statute, this Court stressed the fact
that the electric current was to cause instantaneous death. Like
the Louisiana statute before us, that statute called expressly for
the continued application of a sufficient electric current to cause
death. It was the resulting "instantaneous" and "painless" death
that was referred to as "humane."
After quoting the New York County and Supreme Courts, this Court
quoted the New York Court of Appeals, at 119 N.Y. 579, as
follows:
"'We have examined this testimony, and can find but little in it
to warrant the belief that this new mode of execution is cruel,
within the meaning of the constitution,
Page 329 U. S. 476
though it is certainly unusual. On the contrary, we agree with
the court below that it removes every reasonable doubt that the
application of electricity to the vital parts of the human body,
under such conditions and in the manner contemplated by the
statute, must result in instantaneous, and consequently in
painless, death.'"
(Italics supplied.)
In re Kemmler, supra, at
136 U. S.
443-444.
Finally, speaking for itself, this Court said:
"
Punishments are cruel when they involve torture or a
lingering death; but the punishment of death is not cruel, within
the meaning of that word as used in the Constitution. It implies
there something inhuman and barbarous, something more than the mere
extinguishment of life."
(Italics supplied.)
Id. at
136 U. S.
447.
If the state officials deliberately and intentionally had placed
the relator in the electric chair five times and, each time, had
applied electric current to his body in a manner not sufficient,
until the final time, to kill him, such a form of torture would
rival that of burning at the stake. Although the failure of the
first attempt, in the present case, was unintended, the
reapplication of the electric current will be intentional. How many
deliberate and intentional reapplications of electric current does
it take to produce a cruel, unusual and unconstitutional
punishment? While five applications would be more cruel and unusual
than one, the uniqueness of the present case demonstrates that,
today, two separated applications are sufficiently "cruel and
unusual" to be prohibited. If five attempts would be "cruel and
unusual," it would be difficult to draw the line between two,
three, four and five. It is not difficult, however, as we here
contend, to draw the line between the one continuous application
prescribed by statute and any other application of the current.
Page 329 U. S. 477
Lack of intent that the first application be less than fatal is
not material. The intent of the executioner cannot lessen the
torture or excuse the result. It was the statutory duty of the
state officials to make sure that there was no failure. The
procedure in this case contrasts with common knowledge of
precautions generally taken elsewhere to insure against failure of
electrocutions. The high standard of care generally taken evidences
the significance properly attached to the unconditional requirement
of a single continued application of the current until death
results. In our view of this case, we are giving careful
recognition to the law of Louisiana. Neither the Legislature nor
the Supreme Court of Louisiana has expressed approval of
electrocution other than by one continuous application of a lethal
current.
Executive clemency provides a common means of avoiding
unconstitutional or otherwise questionable executions. When,
however, the unconstitutionality of proposed executive procedure is
brought before this Court, as in this case, we should apply the
constitutional protection. In this case, final recourse is had to
the high trusteeship vested in this Court by the people of the
United States over the constitutional process by which their own
lives may be taken.
In determining whether a case of cruel and unusual punishment
constitutes a violation of due process of law, each case must turn
upon its particular facts. The record in this case is not limited
to an instance where a prisoner was placed in the electric chair
and released before being subjected to the electric current. It
presents more than a case of mental anguish, however severe such a
case might be. The petition to the Supreme Court of Louisiana
expressly states that a current of electricity was caused to pass
through the body of the relator. This allegation was denied
Page 329 U. S. 478
in the answer, and no evidence was presented by either side. The
Supreme Court of Louisiana thereupon undertook to decide the case
on the pleadings. It said:
"Our conclusion is that the complaint made by the relator is a
matter over which the courts have no authority. Inasmuch as the
proceedings had in the district court, up to and including the
pronouncing of the sentence of death, were entirely regular, we
have no authority to set aside the sentence and release the relator
from the sheriff's custody. [
Footnote
2/1]"
This statement assumed that the relief sought in the Supreme
Court of Louisiana was only a review of the judicial proceedings in
the lower state courts prior to the passing of sentence upon the
relator on September 14, 1945. On the contrary, the issue raised
there and here primarily concerns the action of state officials on
and after May 3, 1946, in connection with their past and proposed
attempts to electrocute the relator. This issue properly presents a
federal constitutional question based on the impending deprivation
of the life of the relator by executive officials of the State of
Louisiana in a manner alleged
Page 329 U. S. 479
to be a violation of the due process of law guaranteed by the
Fourteenth Amendment. The refusal of the writs necessarily denied
the constitutional protection prayed for. In ruling against the
relator on the pleadings, in the absence of further evidence, the
Supreme Court of Louisiana must be taken to have acted upon the
allegations of fact most favorable to the relator. The petition
contains the unequivocal allegation that the official
electrocutioner
"turned on the switch and a current of electricity was caused to
pass through the body of relator, all in the presence of the
official witnesses."
This allegation must be read in the light of the Louisiana
statute, which authorized the electrocutioner to apply to the body
of the relator only such an electric current as was of "sufficient
intensity to cause death." On that record, denial of relief means
that the proposed repeated, and at least second, application to the
relator of an electric current sufficient to cause death is not,
under present circumstances, a cruel and unusual punishment
violative of due process of law. It exceeds any punishment
prescribed by law. There is no precedent for it. What then is it,
if it be not cruel, unusual and unlawful? In spite of the
constitutional issue thus raised, the Supreme Court of Louisiana
treated it as an executive question not subject to judicial review.
We believe that, if the facts are as alleged by the relator, the
proposed action is unconstitutional. We believe also that the
Supreme Court of Louisiana should provide for the determination of
the facts, and then proceed in a manner not inconsistent with this
opinion.
That counsel for both sides recognize the materiality of what
occurred on May 3, 1946, is demonstrated by the affidavits and the
transcript of testimony which they took from available public
records and called to the attention of this Court by publication of
them in connection with their respective briefs in this Court.
Excerpts from those
Page 329 U. S. 480
public records, printed in the margin, indicate the conflict of
testimony which should be resolved. [
Footnote 2/2]
The remand of this cause to the Supreme Court of Louisiana in
the manner indicated would not mean that the
Page 329 U. S. 481
relator necessarily is entitled to a complete release. It would
mean merely that the courts of Louisiana must examine the facts,
both as to the actual nature of the punishment already inflicted
and that proposed to be inflicted, and, if the proposed punishment
amounts to a violation of due process of law under the Constitution
of the United States, then the State must find some means of
disposing of this case that will not violate that Constitution.
For the reasons stated, we are unable to concur in the judgment
of this Court which affirms the judgment below.
[
Footnote 2/1]
That court, in discussing the pleadings, also said:
"In this latter answer or opposition, it is admitted that the
attempt was made to electrocute Willie Francis on May 3, 1946, in
obedience of the death warrant, but it is averred that, through
some latent electrical defect in the apparatus, no electric current
reached the body of Willie Francis, and, for that reason, the
sentence of death was not carried out. We have no other evidence,
of course, as to whether an electric current did reach the body of
Willie Francis. The important fact, however, is that a current of
sufficient intensity to cause death, as required by the statute on
the subject, and by the death warrant, did not pass through the
body of Willie Francis."
This means that, as long as the relator did not die, the court
apparently regarded the carrying out of the death sentence as a
purely executive function not subject to judicial review.
[
Footnote 2/2]
The following excerpts are from copies of affidavits printed as
appendices to the brief on behalf of the petitioner. The official
witnesses named were persons charged by statute with the duty of
making a signed report or "proces verbal" reciting the manner and
date of the execution to be filed with the clerk of the court in
which the sentence was imposed. La.Code of Criminal Procedure
(1928), Act No. 2, Art. 571. The statements refer to what happened
after the relator had been strapped into the electric chair and a
hood placed before his eyes.
"Then the electrocutioner turned on the switch, and when he did,
Willie Francis' lips puffed out and he groaned and jumped so that
the chair came off the floor. Apparently the switch was turned on
twice, and then the condemned man yelled: 'Take it off. Let me
breath.'"
Affidavit of official witness Harold Resweber, dated May 23,
1946.
"I saw the electrocutioner turn on the switch and I saw his lips
puff out and swell, his body tensed and stretched. I heard the one
in charge yell to the man outside for more juice when he saw that
Willie Francis was not dying, and the one on the outside yelled
back he was giving him all he had. Then Willie Francis cried out
'Take it off. Let me breath.' Then they took the hood from his eyes
and unstrapped him."
"
* * * *"
"This boy really got a shock when they turned that machine
on."
Affidavit of official witness Ignace Doucet, dated May 30,
1946.
"After he was strapped to the chair, the Sheriff of St. Martin
Parish asked him if he had anything to say about anything, and he
said nothing. Then the hood was placed before his eyes. Then the
officials in charge of the electrocution were adjusting the
mechanisms, and when the needle of the meter registered to a
certain point on the dial, the electrocutioner pulled down on the
switch, and at the same time said: 'Good-bye, Willie.' At that very
moment, Willie Francis' lips puffed out and his body squirmed and
tensed, and he jumped, so that the chair rocked on the floor. Then
the condemned man said: 'Take it off. Let me breath.' Then the
switch was turned off. Then some of the men left, and, a few
minutes after, the Sheriff of St. Martin Parish, Mr. E. L.
Resweber, came in and announced that the governor had granted the
condemned man a reprieve."
Affidavit of official chaplain Reverend Maurice L. Rousseve,
dated May 25, 1946.
Attached to the brief on behalf of the respondents there was
submitted a copy of the transcript of testimony taken before the
Louisiana Pardon Board on May 31, 1946, in support of the relator's
application for executive clemency, which was denied June 1, 1946.
This transcript includes testimony of those who were in charge of
the electrical equipment on May 3, to the effect that no electric
current reached the body of the relator, and that his flesh did not
show electrical burns. It also included a statement by the sheriff
of a neighboring parish, who accompanied the relator from the
chair, that the relator told him on leaving the chair that the
electric current had "tickled him."
These public records were not in existence, and therefore not
before the Supreme Court of Louisiana, when it rendered its
decision on May 15, 1946.