Poor Willie Francis v. Sparky

We’ve finally reached the last somewhat interesting Amendment of the Bill of Rights, the namesake of this entire blog. The Eighth Amendment is one of the most well-known of the Bill of Rights. It is terse, to the point, and indeed memorable: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

As I imagine you may already be aware, the crux of this amendment lies in the clause barring cruel and unusual punishment. Over the years, this phrase has raised a lot of questions: what does it mean to be cruel? If a punishment is cruel, does it matter if it’s unusual or not? How can we compare the cruelty or unusualness of two different punishments?

The notion of cruel and unusual punishment can be traced back the English Bill of Rights in 1689. The American Founding Fathers sourced much of the Declaration of Independence and the Constitution from British documents, so it is no surprise that the influence is quite evident.

With regards to court cases surrounding the Eighth Amendment, there is a landmark case that set up all future interpretation of the phrase cruel and unusual. Furman v. Georgia, decided in June of 1972, focuses on a burglary conducted by Furman in which he fell and accidentally discharged a gun, killing a resident of the home. In the per curiam (by the court as a whole) decision, one of the shortest of all time (only one page), the court declared that the implementation of the death penalty in this and two related cases was a form of cruel and unusual punishment. A variety of concurrences and dissents focused on the arbitrariness with which capital punishment was delegated, particularly against minorities, demonstrating its cruel and unusual nature.

Following the 1972 “moratorium on death”, many states rewrote their laws to ensure that the Supreme Court would allow them. In Gregg v. Georgia, decided in 1976, the Supreme Court approved the constitutionality of many states’ new policies, thereby bringing the death penalty back to life.

While this history of the death penalty is critical to an understanding of the Eighth Amendment, I'd like to include some background on a lesser known case that happened before all of the aforementioned ones. In 1946, the Supreme Court heard the case of Francis v. Resweber. The reason this case is so interesting is because it provides a unique glimpse into the legal system of 70 years ago.

Willie Francis was convicted of a murder in Louisiana at the age of 16. He was sentenced to be electrocuted. In the electrocution process, Francis was shocked but not killed. He pressed charges before he was re-electrocuted that a second attempt would constitute cruel and unusual punishment. In a five  to four vote, the Court ruled that a second electrocution would not constitute cruel and unusual punishment; rather, it was simply the implementation of the sentencing to its fullest extent.

Willie Francis in the Electric Chair
Courtesy of Law Street Media

Of note is that Francis was black in 1947 Louisiana, a tough time and place to be a minority. This could be indicative of the future difficulties the death penalty faced in Furman. Despite its outdated nature, Francis v. Resweber is a uniquely interesting case from the annals of Supreme Court history.