Cruel and Unusual History
The U.S. Supreme Court has concluded, in a 7-2 ruling, that Kentucky’s three-drug method of execution by lethal injection does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In writing his opinion, Chief Justice John Roberts cited a Supreme Court principle from a ruling in 1890 that defines cruelty as limited to punishments that “involve torture or a lingering death.”
But the court was wrong in the 19th century, an error that has infected its jurisprudence for more than 100 years. In America’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, 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 electricity 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 electricity 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, Louisiana. 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. Governor 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 recent majority opinion, 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, 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.
Gilbert King is the author of “The Execution of Willie Francis: Race, Murder and the Search for Justice in the American South.”
Copyright © 2008 The International Herald Tribune
The other day I began reading Gilbert King’s “The Execution of Willie Francis”, and I’ve gotten through just the first few chapters so far. It’s hard to put down. I’d be reading it now if I weren’t at work. I would recommend it to any adult.
Don’t the people who administered the firing squad know that the leader of the squad is supposed to fire a round from a pistol into the guy’s head as a coup de grace? If you’re going to execute people do it quickly, shoot them in the head, not heart. Don’t cook them with electricity, hang them by their neck until they’re dead. It’s worked for centuries.
If you’re going to take time to kill the condemned, why not crucify them? It was good enough for Christ, it’s good enough for anyone else, I’d say.
But if you don’t want to be barbaric when you execute someone, let god do it. Keep them in a cell, feed them a boring diet of gruel that keeps them alive until they die of natural causes, then bury them behind prison walls. Anyone who has known a former inmate will tell you that is the criminal’s greatest fear; to die in a cell, years after they’ve been forgotten by everyone else.
Why worry about execution when you have no writ of ‘habeus corpus’ anymore?
I mean, it’s not like the US has ties to Death Squads anywhere in it’s past…
I mean there’s no EVIDENCE that the US helped train, arm, and equip Death Squads…
Or give them intelligence or suggestions about who, or which class of people to kill…
Right?
If it’s possible to euthanize animals, why is it so difficult to execute humans without torturing them? Not that execution isn’t already torture.
The American system of justice is not competent enough to permit the execution of anyone. Nor is the American penal system free of “cruel and unusual punishment” as the majority of inmates (most of which are in for non-violent offences) spend their entire sentence living in perpetual fear. Like everything else in society, corporate America has hijacked the system by privatizing the prisons, dictating what crimes are worthy of incarceration (smoking pot?), cutting social programs which would have reduced the overall rate of crime and most importantly (via the MSM and bought politicians) sensationalizing the threat to Americans for political and financial gain.
We are one of the top four nations in the world in executions, we are approaching a prison population of 3,000,000, our judeges are chosen based on political party association (ever see a lawyer from the Green Party get picked to sit on the bench?)and we live in a system where lawyers encourage us to sue our neighbors for any accidental mishap. All this goes on while the rampant theft of trillions of American tax dollars via corporate welfare goes unpunished.
Really? We’re still talking about which method of murder is the good one, and which one not so much? We’re a country that recently killed and maimed millions of innocent Iraqis and Afghanis, not to mention a few hundred Somalians. Suddenly we’re getting all humane and shit?
There’s half-a-million Americans doing 5 years for smoking a joint - that’s not cruel and unusual punishment? The Vioxx bastards killed or nearly killed over 27,000 people and they’re still walking around free, raking in the billions.
Even on a tiny scale - I got a $75 ticket because I didn’t put a nickel in the parking meter fast enough. And, when I didn’t pay the ticket, it doubled to $150. Then, when I didn’t pay that, my driver’s license was suspended (not my parking license.) And the fine doubled again. Then my vehicle registration was suspended. Then they came and took the car. True story. Because I didn’t get the nickel in the parking meter fast enough - a parking meter, I might add, that my tax dollars paid for, set into a sidewalk I also helped pay for.
But a traitor like Libby gets off, and not a single Wall Streeter or Banker or Mortgage lender has even had a wrist slapped for bringing the economy to it’s knees and destroying the lives of millions of “fellow Americans.”
How about we just put the “evil” convict in a car, send ‘em off into the Mohave and let the CIA nail him (or her) with a UAV-launched Hellfire missile?
Really? But who knows the truth?
Gibbons said that one of the reasons that the ancient Roman Empire fell was because the citizens were tired of being a victim of the Roman laws.
Looks like we are about there, too.
Galan:
lets just line them up and give everyone a live bullet ( Not some with blanks ) and the person getting killed picks the people. Not immediate family unless they were hurt etc in the case to pull the trigger.
Good Luck;
and if the one bullet misses the target, would you consider that an act of god and allow the condemned to walk free? In days gone by if the rope broke the convict was freed…
So we have the United States Supreme Court ruling on the legalities of a method used to kill people. Awesome….something to be proud of.
Ah, the brilliant abstraction of the judicial mind!
The same Supremes who affirmed the necessity of requiring a photo ID to exercise one’s franchise as a remedy for imaginary vote fraud aren’t concerned with a few anecdotal reports of the grotesque agony to which prisoners may be subjected during execution. Why, those were just Merry Mixups!
No doubt they’re OK with waterboarding and such as well. Civilization, ho!
Exile, exile, exile! This is the answer that protects society from violent criminals without descending to their level of brutalization. It is cheaper, it is more effective, it is more humane, it is the answer. But nobody is asking the right question.
.45ACP is so cheap. about 40 cents to the rount. You put that to his temple, and instant death. Never did figure out why firing squads got deemed inhumane. What about the air tank with the needle that we use to execute our beef? Heck, that is almost free. Why not use that? Instant penetration of the medulla oblongata is an instant kill. It’s very humane too. If you don’t think so, maybe you should quit eating meat. If you already do not eat meat, then I do feel you have the right to complain.
As I recall the telling of the tale of the infamous Francis v Resweber case from my law school daze, the Supreme Court had to first reject the condemned man’s claim that a second execution would constitute double jeopardy, and then reject the claim that it was cruel and unusual punishment.
Although it may be an embellished anecdote, legend has it that when Justice Felix Frankfurther as the swing vote opted not to intervene in the second scheduled electric chair session, he did so because there had been back channel assurances that either the Louisiana state Supreme Court or the Governor of Louisiana was going to intervene and halt the re-execution of Francis, rendering further federal Constitutional challenge at the US Supreme Court level moot.
Oops! The back channel info turned out to be untrue. The condemned man died the second time around, and it all became moot indeed - another illustration of the old legal proverb about how hard facts often make bad law.
Bill from Saginaw
I guess it’s only cruel and unusual if somebody notices?
From what I’ve heard, it isn’t even legal to do to animals what they’re doing to people, there are actual LAWS that protect animals from this practice. From IVs that miss veins, to using paralyzing drugs, to being tortured to death but unable to scream, I just can’t believe these law idiots went this way. Best legal minds in our country? Not. Not even close.
Brains full of mush. At best.
Yo, I didnt see anything in the article that described what crimes the condemned where CONVICTED of.
Somebody with a degree in journalism might dig that information up and post it.
I have an idea. Lets borrow a nifty trick from those peaceful middle eastern cousins of mine and blow up the convicted criminal.
Is that fast enough for you?
Or we can try the gentle Persian technique currently used in Iran. Hanging.
Imagine three strangers violating your aunts ass with a baseball bat (among other things) to the point of death and then dumping her body rolled up in a carpet.
Now say to yourself, “Hey, they were black just like me! They must have been victimized by our racist society. Lets let them try to reeducate them in a more progressive manner and get them a nice minimum wage job. (like you racist MF’s keep doing and doing)
You want to know why MY people hate you? Its because you are the most spineless chicken s*** race of losers. Just pathetic.
We have had many more recent botched executions since Wallace Wilkerson, William Kemmler and Willie Francis. How about Ethel Rosenberg. The first jolt of electricity didn’t kill her, and they had to give her another one to finish her off. May be if Chief Justice John Roberts had high voltage electrical current run through him he would have a different opinion on what constituted torture or a lingering death.
The worst part about the execution of Julius, and Ethel Rosenberg is that they did not commit any crime. They were murdered simply because they held political beliefs which were different from those of our governments. Injustices have always happened. When they are discovered, we can correct them. When a human life has been wrongly taken it can never be corrected.
It seems that most of the supporters of capital punishment are so called Conservative Christians. Aren’t Christians suppose to follow the Ten Commandments? Though Shalt Not Kill. It can’t be any clearer than that.