Francis v. Resweber

[© tweed]

http://en.wikipedia.org/wiki/Francis_v._Resweber

[Sam Spade]

5th amendment:

Considering that the punishment here was death, I don't see how failure to carry out the punishment because of a malfunction makes a subsequent "retry" a second punishment constituting double jeopardy.  The guy never received the punishment in the first place; he just received a little "electro-shock" therapy. 

8th amendment:

Philip has argued quite well that the whole "death penalty is cruel and unusual punishment" argument profligated by Brennan and Marshall in later times is fallacious due to the Constitution's mentions of "death", especially in the 5th amendment.  Therefore, I fail to see how any malfunction in the carrying out of the death sentence constitutes "cruel and unusual punishment" without any showing of intent on the part of those carrying out the execution to prolong pain and suffering purposely.

[Emsworth]

The argument that the second attempted punishment violates the double jeopardy clause is utterly absurd; even more absurd is the idea that the death penalty in general is prohibited by the Eighth Amendment. But those general observations are not dispositive of the case at hand.

The term "unusual," in the Eighth Amendment, is equivalent to "illegal." (The English Bill of Rights used the terms "illegal" punishments and "unusual" punishments interchangeably.) Whether the punishment applied to the convict in this case was actually consistent with Louisiana's own laws--and therefore, with the Constitution of the United States--is rather difficult to tell. The dissent quotes a Louisiana statute which seems to state that an individual's electrocution must be the result of a single, continuous current. Now, since I am not familiar with the other clauses of the same law, nor with previous interpretations of this statute by the Louisiana courts themselves, I cannot conclusively say that the statute really means what the dissent says it means. Therefore, I must withhold further comment.