But the court was wrong in the 19th
century, an error that has infected its jurisprudence for more than 100 years.
In this nation’s landmark capital punishment cases, the resultant executions
were anything but free from torture and prolonged deaths.
The first of those landmark cases,
the 1879 case of Wilkerson v. Utah, was cited by Justice Clarence Thomas, in
his concurring opinion in the Kentucky case. The court “had no difficulty
concluding that death by firing squad” did not amount to cruel and unusual
punishment, Justice Thomas wrote.
Wallace Wilkerson might have begged
to differ. Once the Supreme Court affirmed Utah’s right to eradicate him by
rifle, Wilkerson was let into a jailyard where he declined to be blindfolded. A
sheriff gave the command to fire and Wilkerson braced for the barrage. He moved
just enough for the bullets to strike his arm and torso but not his heart.
“My God!” Wilkerson shrieked. “My
God! They have missed!” More than 27 minutes passed as Wilkerson bled to death
in front of astonished witnesses and a helpless doctor.
Just 11 years later, the Supreme
Court heard the case of William Kemmler, who had been sentenced to death by
electric chair in New York. The court, in affirming the state’s right to
execute Kemmler, ruled that electrocution reduced substantial risks of pain or
“a lingering death” when compared to executions by hanging. Kemmler, had he
lived through the ensuing execution (and he nearly did), might too have
disagreed.
After a thousand volts of current
struck Kemmler on Aug. 6, 1890, the smell of burnt flesh permeated the room. He
was still breathing. Saliva dripped from his mouth and down his beard as he
gasped for air. Nauseated witnesses and a tearful sheriff fled the room as
Kemmler’s coat burst into flames.
Another surge was applied, but
minutes passed as the current built to a lethal voltage. Some witnesses thought
Kemmler was about to regain consciousness, but eight long minutes later, he was
pronounced dead.
Perhaps the most egregious case came
to the court more than 50 years later. “Lucky” Willie Francis, as the press
called him, was a stuttering 17-year-old from St. Martinville, La. In 1946, he
walked away from the electric chair known as “Gruesome Gertie” when two
executioners (an inmate and a guard) from the state penitentiary at Angola
botched the wiring of the chair.
When the switch was thrown, Francis
strained against the straps and began rocking and sliding in the chair,
pleading with the sheriff and the executioners to halt the proceedings. “I am
n-n-not dying!” he screamed. Gov. Jimmie Davis ordered Francis returned to the
chair six days later.
Francis’ lawyers obtained a stay,
and the case reached the Supreme Court. Justice Felix Frankfurter defined the
teenager’s ordeal as an “innocent misadventure.” In the decision, Louisiana ex
rel. Francis v. Resweber, the court held that “accidents happen for which no
man is to blame,” and that such “an accident, with no suggestion of
malevolence” did not violate the Constitution.
Fewer than 24 hours before Francis’
second scheduled execution, his lawyers tried to bring the case before the
Supreme Court again. They had obtained affidavits from witnesses stating that
the two executioners from Angola were, as one of the witnesses put it, “so
drunk it would have been impossible for them to have known what they were
doing.” Although the court rejected this last-minute appeal, it noted the
“grave nature of the new allegations” and encouraged the lawyers to pursue the
matter in state court first, as required by law.
Willie Francis was executed the next
morning. Because his case never made it back to the Supreme Court, the ruling
lingers, influencing the decisions of today’s justices. In his majority opinion
last week, Chief Justice Roberts called Louisiana’s first attempt at executing
Francis an “isolated mishap” that “while regrettable, does not suggest
cruelty.”
Justice Clarence Thomas, writing
separately, also mentioned the Francis case: “No one suggested that Louisiana
was required to implement additional safeguards or alternative procedures in
order to reduce the risk of a second malfunction.” In fact, Louisiana did just
that. Two weeks after the botched execution of Willie Francis, its Legislature
required that the operator of the electric chair “shall be a competent
electrician who shall not have been previously convicted of a felony.” This law
would have prohibited both executioners from participating in Francis’ failed
execution.
The court’s majority opinion in the
Willie Francis case acknowledged, “The traditional humanity of modern
Anglo-American law forbids the infliction of unnecessary pain in the execution
of the death sentence.” Yet the Supreme Court continues to flout that standard.
In its ruling last week, the court
once more ignored the consequences of its rulings for men like Wallace
Wilkerson, William Kemmler and Willie Francis. The justices cited and applied
Wilkerson’s and Kemmler’s cases as if their executions went off without a
hitch.
And 60 years after two drunken
executioners disregarded the tortured screams of a teenage boy named Willie
Francis, the Supreme Court continues to do so.