Louisiana ex rel. Francis v. Resweber

The first attempt to electrocute Willie Francis had failed. Francis filed suit, claiming both that his original trial had been unfair, and that a second attempt to execute him would constitute cruel and unusual punishment, which is prohibited by the Eighth Amendment. Francis also argued that a second execution attempt would violate the double-jeopardy provision of the Fifth Amendment, which states " . . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . " Finally, since no other prisoner was subject to two separate electrocution attempts, Francis argued that a second attempt would violate his right to due process of law under the Fourteenth Amendment.

The Supreme Court was sharply divided on this issue. Four justices voted to uphold Francis's execution. Four justices voted to overturn it. The deciding vote was cast by Justice Frankfurter, who wrote, " . . . this Court must abstain from interference with State action no matter how strong one's personal feeling of revulsion against a State's insistence on its pound of flesh." In other words, Frankfurter wished personally to spare Willie Francis's life, but he felt that the state of Louisiana did indeed have the right to execute Francis. With Frankfurter's vote, Willie Francis's death sentence was upheld, and he was electrocuted a second time.