state la ex rel francis resweber argued november decided january rehearing denied see skelly wright new orleans petitioner michael culligan new orleans pecot franklin respondents justice reed announced judgment opinion chief justice justice black justice jackson join writ certiorari brings unique situation petitioner willie francis colored citizen louisiana duly convicted murder september sentenced electrocuted crime upon proper death warrant francis prepared execution may pursuant warrant placed official electric chair state louisiana presence authorized witnesses executioner threw switch presumably mechanical difficulty death result thereupon removed chair returned prison new death warrant issued governor louisiana fixing execution may applications state filed writs certiorari mandamus prohibition habeas corpus directed appropriate officials state execution sentence stayed applications petitioner claimed protection due process clause fourteenth amendment ground execution circumstances detailed deny due process double jeopardy provision fifth amendment cruel unusual punishment provision eighth amendment federal constitutional protections petitioner claimed denied gone difficult preparation execution received body current electricity intended cause death louisiana denied applications ground lack basis judicial relief state concluded violation state national law alleged various applications spoke fact sufficient intensity cause death passed petitioner body referred specifically fact applications petitioner invoked provisions louisiana constitution cruel inhuman punishments putting one jeopardy life liberty twice offense granted certiorari petition setting forth aforementioned contentions consider alleged violations rights federal constitution unusual circumstances case state louisiana ex rel francis resweber matters state law ion order louisiana binding hebert state louisiana far aware case without precedent determine whether execution petitioner may fairly take place experience passed shall examine circumstances assumption without deciding violation principles fifth eighth amendments double jeopardy cruel unusual punishment violative due process clause fourteenth amendment nothing brought attention suggest contrary must assume state officials carried duties death warrant careful humane manner accidents happen man blame turn question whether proposed enforcement criminal law state offensive constitutional requirements reference made first minds rebel permitting sovereignty punish accused twice offense ex parte lange wall bradley compare lanza accused successfully seeks review conviction double jeopardy upon new trial ball see people trezza even state obtains new trial conviction errors accused may placed trial second time sort hardship ac used forbidden fourteenth amendment palko state connecticut supra page page prosecution state law far double jeopardy concerned palko case decisive see difference constitutional point view new trial error law instance state results death sentence instead imprisonment life execution follows failure equipment accident suggestion malevolence prevents consummation sentence state subsequent course administration criminal law affected account requirement due process fourteenth amendment find double jeopardy said amount denial federal due process proposed execution second find nothing took place amounts cruel unusual punishment constitutional sense case us call examination punishments except death see weems traditional humanity modern law forbids infliction unnecessary pain execution death sentence prohibition wanton infliction pain come law bill rights identical words appear eighth amendment fourteenth prohibit due process clause execution state cruel manner petitioner suggestion underwent psychological strain preparation electrocution require undergo preparation subjects lingering cruel unusual punishment even fact petitioner already subjected current electricity make subsequent execution cruel constitutional sense execution cruelty constitution protects convicted man cruelty inherent method punishment necessary suffering involved method employed extinguish life humanely fact unforeseeable accident prevented prompt consummation sentence seems us add element cruelty subsequent execution purpose inflict unnecessary pain unnecessary pain involved proposed execution situation unfortunate victim accident though suffered identical amount mental anguish physical pain occurrence example fire cell block agree hardship imposed upon petitioner rises level hardship denounced denial due process cruelty third louisiana also rejected petitioner contention death inflicted prior sufferings deny equal protection laws guaranteed fourteenth amendment suggestion far differs due process argument based idea execution attempt execution failed severe punishment imposed upon others guilty like offense since others go strain preparation execution second time experienced nonlethal current prior attempt execution petitioner compel petitioner submit execution prior experiences denies equal protection equal protection protect prisoner even illegal acts officers charge much less accidents detention execution see lisenba people state california laws prevent accidents law equally protect long law applies alike requirements equal protection met right assume louisiana singled francis treatment generally applied fourth suggestion brief original trial unfair petitioner justify reversal judgment conviction new trial petitioner claim brief inadequately represented counsel record original trial presented us shows warrant arrest indictment appointment counsel minute entries trial selection jury verdict sentence nothing papers show violation petitioner constitutional rights see carter people state illinois review sought denial due process law brought execution petitioner failure first effort electrocute nothing us upon ruling predicated alleged denial federal constitutional rights petitioner trial record see nothing upon conclude constitutional rights petitioner infringed affirmed justice frankfurter concurring four members find state denied person due process fourteenth amendment safeguards seems important explicit regarding criteria state duty obedience constitution must judged particularly life stake july fourteenth amendment ratified constitution left free carry notions criminal justice except insofar limited article constitution declares state shall pass bill attainder ex post facto law fourteenth amendment placed specific restraints upon formulation administration criminal law restricted freedom generally thereafter privileges immunities citizens person life liberty property without due process law person within jurisdiction equal protection laws broad inexplicit clauses constitution unlike specific provisions first eight amendments formulated founders guard urrence historic grievances broad clauses generalities empty vagueness circumscribed partly history partly problems government large dynamic though concerned immunities citizens concern dual citizenship federal system safeguards process law equal protection laws summarize meaning struggle freedom peoples run back magna carta contemplate less advances conceptions justice freedom progressive society see classic language justice matthews hurtado people state california shortly adoption fourteenth amendment came construction urged immunities citizens abridged state privileges immunities citizens theretofore enjoyed constitution view prevailed privileges immunities clause fourteenth amendment placed upon limitations specific articles first eight amendments theretofore placed upon agencies national government fullest consideration view rejected rejection authority comes contemporaneous knowledge purposes fourteenth amendment see cases wall davidson city new orleans otto notion privileges immunities clause fourteenth amendment absorbed called provisions bill rights limit federal government never given countenance recently suggested due process clause fourteenth amendment merely compendious reference bill rights whereby restricted devising enforcing penal code precisely federal government first eight amendments view confined enforcement criminal codes views safeguarding rights individual deemed necessary eighteenth century safeguards perduring validity grew transient experience formulated remedies time might well improve fourteenth amendment mean imprison limited experience eighteenth century mean withdraw right act ways offensive decent respect dignity man heedless freedom broad terms accommodate freedom authority suggested time time may large serve basis adjudication allow much room individual notions policy concern fact duty adjudication basis less narrow committed impressive body decisions decided due process clause fourteenth amendment expresses demand civilized standards defined specifically enumerated guarantees bill rights neither contain particularities first eight amendments confined due process law independent function illustrated numerous decisions expounded opinions canvassed matter thoroughly see hurtado people state california supra twining state new jersey snyder commonwealth massachusetts palko state connecticut insofar due process fourteenth amendment requires observe immunities valid federal government force specific pledges particular amendments found implicit concept ordered liberty thus fourteenth amendment become valid palko state connecticut supra pages page federal bill rights requires prosecutions federal crimes initiated grand jury tried petty jury protects accused witness free consult conceptions policy dispensing grand jury modifying abolishing petty jury withholding privilege see maxwell dow twining state new jersey supra snyder commonwealth massachusetts supra palko state connecticut supra pages page cf feldman short due process clause fourteenth amendment withdraw freedom state enforce notions fairness administration criminal justice unless put justice cardozo offends principle justice rooted traditions conscience people ranked fundamental snyder commonwealth massachusetts supra page page state may offend principle justice brutal subjection individual successive retrials charge acquitted conduct state might denial due process protection double jeopardy federal prosecution fifth amendment safeguards limits state disputations engendered technical aspects double jeopardy enshrined fifth amendment see majority dissenting opinions ex parte lange wall bradley state may found deny person due process treating even one guilty crime manner violates standards decency less universally accepted though treats mode opinion fairly divided penological policy state tested scope eighth amendment involved controversy necessarily evoked amendment historic meaning unusual punishment see weems particularly dissenting opinion white holmes jj explicit stating problem us terms defined unbroken series decisions escape acknowledging involves application standards fairness justice broadly conceived application merely personal standards impersonal standards society alone judges organs law empowered enforce standards judicial judgment narrower principles justice inhere idea free government holden hardy principles liberty justice lie base civil political institutions hebert state louisiana implicit concept ordered liberty palko state connecticut supra pages page great tolerance toward state conduct demanded recently stated controlling principles see chief justice stone malinski new york connection concurring opinion case pages pages bring believe louisiana leave executive clemency rather require mitigation sentence death duly pronounced upon conviction murder first attempt carry innocent misadventure offends principle justice traditions conscience people see snyder commonwealth massachusetts supra page page short compulsion principle must abstain interference state action matter strong one personal feeling revulsion state insistence pound flesh one must guard finding personal disapproval reflection less prevailing condemnation strongly drawn sentiments expressed brother burton rid conviction hold louisiana transgress due process clause state allowed precise circumstances us carry death sentence enforcing private view rather consensus society opinion purposes due process standard enjoined constitution fact reach conclusion mean hypothetical situation assumes series abortive attempts electrocution even single cruelly willful attempt raise different questions fourteenth amendment first came application abstained venturing even tentative definition due process wise forethought indicated may found within without due process clause must inevitably left gradual process judicial inclusion exclusion cases presented decision shall require reasoning decisions may founded davidson city new orleans supra page otto page another way saying matters depend degree whole law soon civilized holmes leroy fibre chicago milwaukee especially questions arising due process clause finding case state louisiana gone beyond powers starting point abstractly logical extension since say conscience mankind palko state connecticut supra page page louisiana exercise power stands say constitution withholds justice burton justice douglas justice murphy justice rutledge concur dissenting circumstances unique judicial history relator asks stay execution ground violate due process law guaranteed constitution believe unusual facts us require judgment louisiana vacated cause remanded proceedings inconsistent opinion proceedings include determination certain material facts previously determined including extent electric current applied relator attempted electrocution may life taken must avoidable error law uncertainty fact relator execution ordered governor louisiana take place may proceedings day louisiana said hours noon willie francis strapped electric chair attempt made electrocute defect apparatus devised used electrocutions contrivance failed function unsuccessful attempt electrocute francis removed chair proceedings state brief says latent electrical defect attempt electrocute francis failed state contending current whatsoever reached francis body relator contending current electricity pass body event willie francis put death may death warrant canceled relator execution stayed pending completion proceedings governor proposes issue another death warrant relator electrocution relator asks prevent reason present unique circumstances electrocution cruel unusual violate due process clause fourteenth amendment constitution amendment provides shall state deprive person life liberty property without due process law adopted long imbedded deeply standards nation revulsion subjecting guilty persons torture culminating death preconstitutional american history reeked cruel punishment extent eighth amendment constitution expressly imposed upon federal agencies mandate bail shall required excessive fines imposed cruel unusual punishments inflicted louisiana many adopted like constitutional provisions see section article constitution louisiana capital case us presents instance violation constitutional due process clear presented many lesser punishments prohibited eighth amendment state counterparts taking human life unnecessarily cruel means shocks fundamental instincts civilized man possible constitutional dure people abhorrence cruelty ancient forms capital punishment increased steadily today prohibited capital punishment altogether unthinkable state legislature modern times enact statute expressly authorizing capital punishment repeated applications electric current separated intervals days hours finally death shall result legislature louisiana louisiana say louisiana said merely pending petitions relief case presented executive rather judical question mistake law precluded discussing constitutional issue us determining whether proposed procedure unconstitutional must measure lawful electrocution contrast instantaneous death death electric shocks administered one intervening periods complete consciousness victim electrocution instantaneous inflicted state conformity due process law kemmler louisiana held electrocution manner prescribed statute humane hanging state ex rel pierre jones la certiorari denied see also malloy state south carolina consideration execution shall instantaneous substantially painless punishment shall reduced nearly possible death electrocution approved form eliminates suffering louisiana statute makes clear provides sentence death imposed state shall electrocution causing pass body person convicted current electricity sufficient intensity cause death application continuance current body person convicted person dead la code criminal procedure act art amended act provide electrocution interrupted repeated applications electric current intervals several days even minutes provide application electric current intensity less sufficient cause death prescribes expressly solely application current sufficient intensity cause death continuance application death results prescribing capital punishment construed strictly implied provision second third multiple application current statutory judicial precedent upholding delayed process electrocution considerations emphasized kemmler supra early new york statute authorizing electrocution attacked violative due process clause fourteenth amendment prescribing cruel unusual punishment upholding statute stressed fact electric current cause instantaneous death like louisiana statute us statute called expressly continued application sufficient electric current cause death resulting death referred quoting new york county courts quoted new york appeals people ex rel kemmler durston page page follows examined testimony find little warrant belief new mode execution cruel within meaning stitution though certainly unusual contrary agree removes every reasonable doubt application electricity vital parts human body conditions manner contemplated statute must result instantaneous consequently painless death italics supplied kemmler supra pages page finally speaking said cruel involve torture lingering death punishment death cruel within meaning word used constitution implies something inhuman mere extinguishment life italics supplied page page state officials deliberately intentionally placed relator electric chair five times time applied electric current body manner sufficient final time kill form torture rival burning stake although failure first attempt present case unintended reapplication electric current intentional many deliberate intentional reapplications electric current take produce cruel nusual unconstitutional punishment five applications cruel unusual one uniqueness present case demonstrates today two separated applications sufficiently unusual prohibited five attempts unusual difficult draw line two three four five difficult however contend draw line one continuous application prescribed statute application current lack intent first application less fatal material intent executioner lessen torture excuse result statutory duty state officials make sure failure procedure case contrasts common knowledge precautions generally taken elsewhere insure failure electrocutions high standard care generally taken evidences significance properly attached unconditional requirement single continued application current death results remanding case giving careful recognition law louisiana neither legislature louisiana expressed approval electrocution one continuous application lethal current executive clemency provides common means avoiding unconstitutional otherwise questionable executions however unconstitutionality proposed executive procedure brought case apply constitutional protection case final recourse high trusteeship vested people constitutional process lives may taken determining whether case cruel unusual punishment constitutes violation due process law case must turn upon particular facts record case limited instance prisoner placed electric chair released subjected electric current presents case mental anguish however severe case might petition louisiana expressly current electricity caused pass body relator allegation nied answer evidence presented either side louisiana thereupon undertook decide case pleadings said conclusion complaint made relator matter courts authority inasmuch proceedings district including pronouncing sentence death entirely regular authority set aside sentence release relator sheriff custody statement assumed relief sought louisiana review judicial proceedings lower state courts prior passing sentence upon relator september contrary issue raised primarily concerns action state officials may connection past proposed attempts electrocute relator issue properly presents federal constitutional question based impending deprivation life relator executive officials state louisiana manner alleged violation due process law guaranteed fourteenth amendment refusal writs necessarily denied constitutional protection prayed ruling relator pleadings absence evidence louisiana must taken acted upon allegations fact favorable relator petition contains unequivocal allegation official electrocutioner switch current electricity caused pass body relator presence official witnesses allegation must read light louisiana statute authorized electrocutioner apply body relator electric current intensity cause death record denial relief means proposed repeated least second application relator electric current sufficient cause death present circumstances cruel unusual punishment violative due process law exceeds punishment prescribed law precedent cruel unusual unlawful spite constitutional issue thus raised louisiana treated executive question subject judicial review believe facts alleged relator proposed action unconstitutional believe also louisiana provide determination facts proceed manner inconsistent opinion counsel sides recognize materiality occurred may demonstrated affidavits transcript testimony took available public records called attention publication connection respective briefs excerpts public records printed margin indicate conflict testimony resolved remand cause louisiana manner indicated mean relator necessarily entitled complete release means merely courts louisiana must examine facts actual nature punishment already inflicted proposed inflicted proposed punishment amounts violation due process law constitution state must find means disposing case violate constitution reasons stated unable concur judgment affirms judgment footnotes fifth amendment shall person subject offence twice put jeopardy life limb eighth amendment bail shall required excessive fines imposed cruel unusual punishments inflicted see twining state new jersey palko state connecticut kemmler collins johnston see kepner cf ball said similar clause embodied constitution new york kemmler language question used constitution state new york intended particularly operate upon legislature state whose control punishment crime almost wholly confided punishment prescribed offense laws state manifestly cruel unusual burning stake crucifixion breaking wheel like duty courts adjudge penalties within constitutional prohibition added page page cruel involve torture lingering death punishment death cruel within meaning word used constitution implies something inhuman barbarous mere extinguishment life louisiana humane provision constitution louisiana constitution art kemmler case denied electrocution infringed federal constitutional rights convicted criminal sentenced execution discussing pleadings also said latter answer opposition admitted attempt made electrocute willie francis may obedience death warrant averred latent electrical defect apparatus electric current reached body willie francis reason sentence death carried evidence course whether electric current reach body willie francis important fact however current sufficient intensity cause death required statute subject death warrant pass body willie francis means long relator die apparently regarded carrying death sentence purely executive function subject judicial review following excerpts copies affidavits printed appendices brief behalf petitioner official witnesses named persons charged statute duty making signed report verbal reciting manner date execution filed clerk sentence imposed criminal procedure act art statements refer happened relator strapped electric chair hood placed eyes electrocutioner turned switch willie francis lips puffed groaned jumped chair came floor apparently switch turned twice condemned man yelled let breath affidavit official witness harold resweber dated may saw electrocutioner turn switch saw lips puff swell body tensed stretched heard one charge yell man outside juice saw willie francis dying one outside yelled back giving willie francis cried let breath took hood eyes unstrapped boy really got shock turned machine affidavit official witness ignace doucet dated may strapped chair eriff martin parish asked anything say anything said nothing hood placed eyes officials charge electrocution adjusting mechanisms needle meter registered certain point dial electrocutioner pulled switch time said willie moment willie francis lips puffer body squirmed tensed jumped chair rocked floor condemned man said let breath switch turned men left minutes sheriff martin parish resweber came announced governor granted condemned man reprieve affidavit official chaplain reverend maurice rousseve dated may attached brief behalf respondents submitted copy transcript testimony taken louisiana pardon board may support relator application executive clemency denied june transcript includes testimony charge electrical equipment may effect electric current reached body relator flesh show electrical burns also included statement sheriff neighboring parish accompanied relator chair relator told leaving chair electric current public records existence therefore louisiana rendered decision may