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 [p461]
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.
[n1] 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 [p462] 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.
[n2] 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 on trial a second time, it is not the sort of
hardship to the accused that is forbidden by the Fourteenth
Amendment. [p463] Palko v.
Connecticut, 302 U.S. 319, 328.
[n3] 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.
[n4] [p464]
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. [p465]
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 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
[p466] 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.
Eighth Amendment: "Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted."
. . . 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. 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.
