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 [p473] 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 [p474]
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
[p475] 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,
[p476] 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 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
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.
[p477]
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
[p478] 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.
[n1]
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
[p479] 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 [p480]
public records, printed in the margin, indicate the conflict of
testimony which should be resolved.
[n2]
The remand of this cause to the
Supreme Court of Louisiana in the manner indicated would not mean that
the [p481] 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.
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.
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.
