Willie Francis: Twice Put In Jeopardy

Willie Francis was convicted of murder in 1945 and sentenced to death. The following year, on May 3, 1946, he was strapped to the electric chair. The executioner threw the switch, but Francis was not killed. Instead, he got a jolt only strong enough to scare him half to death. The prison authorities thereupon unstrapped him and returned him to his cell.

His lawyers, in a case that went to the Supreme Court, argued that a second attempt to execute him would violate constitutional prohibitions against cruel and unusual punishment and against double jeopardy. But they lost (Louisiana ex rel. Francis v. Resweber, 1947), and Francis was executed by Louisiana on a second attempt.

The decision had been made by the Supreme Court in spite of the fact that in the lower court there had been no cross-examination, no defense, and no ballistics report, as all of the ballistic evidence had been lost. It is interesting and important to note that the Supreme Court rejected the argument based on the non-existent record of the trial court’s proceedings. How can one present an appeal when there is no record?

In response to the argument of cruel and unusual punishment, the Supreme Court found that it would accept the use of due process standards. (Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights.) However, when applying the Eighth Amendment, which prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments, one can still find that there was no cruel and unjust punishment in the execution, because there was a mistake — what was characterized as an accident, rather than a purposeful act. In doing so the Court suggested that if it had been a purposeful act, then it might be deemed as cruel and unusual punishment.

As for the double jeopardy argument, it too was rejected by the United States Supreme Court. Double jeopardy is a procedural defense. In many countries, such as the United States, Canada, Mexico, and India, there is a constitutional right that prevents a defendant from being tried twice for the same crime on the same set of facts. In this case the issue was whether the second execution procedure was a second punishment. The Supreme Court ruled that it was the same punishment.

According to the law today, the double jeopardy clause states that if an individual is acquitted of murder in a federal jurisdiction, the individual cannot be tried again for that murder either in federal or state court. However, as United States law stood at that time, a state could again try an individual for murder, under state court jurisdiction, because at that point the Fifth Amendment’s double jeopardy clause didn’t apply to the states. (The Fifth Amendment of the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure).

This case stands for the proposition that the accidental use of fatal force that does not by itself result in an execution in the initial instance is not cruel and unjust punishment.

It would be fair to say that Justice Felix Frankfurter (Associate Justice of the United States Supreme Court) exercised self-restraint in the Willie Francis case. Frankfurter was basically against capital punishment, but he ruled in favor of the execution in this case. Frankfurter believed that the Fourteenth Amendment, which made important statements about civil rights, immigration, and personal liberties, did not disturb the distribution of power between the states and the central government. Rather, the amendment restricted the unlimited freedom which the states had in making and enforcing their criminal laws. As Frankfurter contended, the amendment was not intended to apply the federal Bill of Rights, which prohibits the federal government from depriving any person of life, liberty, or property without due process of law, to the several states. Similarly, he felt that the Fourteenth Amendment did not withdraw the responsibility of criminal justice from the states and make it instead the business of the federal judiciary.

Justice Black (another Associate Justice of the United States Supreme Court) agreed, recognizing that the lower court’s interpretation of the Fourteenth Amendment’s due process clause had created two different standards of constitutional protection. For instance, there could be an action that would violate the double jeopardy or cruel and unusual punishment prohibitions when performed by the federal government, but which when performed by the state would not be a denial of due process. This made no sense to Justice Black. Why should there be a double standard?

Francis’s attorneys, Skelly Wright and Bertand DeBlanc, shared Black’s concerns in the development of the Francis appeal. The attorneys argued in their brief that a second attempt to carry out the death sentence would violate the Fifth Amendment prohibition. They argued against allowing any person to be twice put in jeopardy of life or limb for the same offense. They argued that through extension of the due process clause of the Fourteenth Amendment, the Fifth Amendment should be held binding in Louisiana. Similarly they argued that cruel and unjust punishment was proscribed by the Eighth Amendment.

Among the public, Justice Frankfurter was a controversial figure. Some admired him, while others disliked him and thought him a hypocrite for ruling in favor of the execution despite his opposition to the death penalty. In any case he was a potent figure in the Willie Francis case, and if one takes the ennobling view of him, one can perceive him balancing heart and mind, and weighing his personal conscience against his duty to the rule of law.   By: Peter Sabbagh


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