When Willie Francis Died: The 'Disturbing' Story Behind One of the Eighth Amendment's Most Enduring Standards of Risk
DEATH PENALTY STORIES, John H. Blume & Jordan M. Steiker, eds., pp. 17-94, Foundation Press, 2009
81 Pages Posted: 6 Apr 2009 Last revised: 12 May 2009
Date Written: March 30, 2009
In the 2008 case, Baze v. Rees, the Supreme Court upheld the constitutionality of Kentucky’s lethal injection protocol. Four of the seven opinions looked to the 1947 Supreme Court case of Louisiana ex rel. Francis v. Resweber for Eighth Amendment Cruel and Unusual Punishments precedent in the death penalty context. Resweber upheld Louisiana’s determination to send Willie Francis - a poor, African American teenager who had survived the State’s first electrocution attempt - to the electric chair a second time. This chapter provides an in-depth examination of the Resweber case telling Francis’s personal story, the efforts of his attorneys, Bertrand de Blanc and J. Skelly Wright, to prevent his execution, and the precedential effect of Resweber, particularly in Baze. At the time Resweber was decided the Supreme Court still considered de jure segregation constitutional and held that the Cruel and Unusual Punishments Clause did not apply to State actions such as a second execution attempt by Louisiana. Ultimately, this Chapter argues that, in light of the passage of six decades, which heralded massive changes in criminal law and procedure, the use of Resweber as modern Eighth Amendment guidance - especially in Baze - is troubling.
In addition to the legal account, this Chapter details personal reactions to Francis’s story obtained through interviews with members of Francis’s family and residents of Francis’s hometown of St. Martinville, Louisiana, as well as numerous letters that people from all over the country wrote Francis while he was waiting in jail. These letter writers discussed many topics, including their reflections on racial injustice in America and the need for religious redemption, not only for Francis but also for his judgers and this country. Yet a number of letters were deeper, more private. Francis, it seems, was not only an imprint of the social and legal times, but also a projected muse of sorts to whom individuals could confide their heartfelt thoughts and wishes - about God, death, health, hopes, family, even romance.
Keywords: fifth amendment, fourteenth amendment, double jeopardy, due process, incorporation, Gilbert Ozenne, L.O. Pecot, James Dudley Simon, NAACP, Tureaud, Joseph Thornton, U.J. Esnault, Dennis Bazer, In re Kemmler, Malloy v. South Carolina, Wilkerson v. Utah, Hugo Black, Felix Frankfurter, Monte Lemann
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