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“DEATH BY INSTALLMENTS”:

“LUCKY” WILLIE FRANCIS AND A MURDER IN CAJUN COUNTRY

DEATH PENALTY AND THE CONSTITUTION



“DEATH BY INSTALLMENTS”: “LUCKY” WILLIE FRANCIS AND A MURDER IN CAJUN COUNTRY

This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University.

Behind each of these executions are, of course, many terrible stories.

Justice William Brennan, 1986.

There's the story of the victim, and of the victim's family and their pain and suffering and loss. There's the story of the crime itself and of the criminal. There's a chronicle of the trial, the appeals, the experience and death row, the plea for clemency. An execution requires an executioner, and executioners have their stories, as do the prison wardens, probation officers, witnesses, girlfriends, and the spouses and the children. There are Death Row chaplains whose jobs are to the minister to the condemned. And of course, there's the constitutional background, backdrop, against which all of these stories are set.

On a hot and sunny morning in southwestern Louisiana, Willie Francis, a 17-year-old Black teenager with a third-grade education, left his courthouse jail cell. It was May 3, 1946. The youngest of thirteen children, he got into the back seat of a black Ford car with the local sheriff and was driven approximately nine and a half miles past sugar cane fields, over the Bayou Teche, and in front of his childhood home on Washington Street in St. Martinville. When Willie woke that morning, he knew he was going to die. The state’s mobile electric chair, commonly known as “Gruesome Gertie,” was waiting for him.

Willie Francis had been convicted of the murder of pharmacist Andrew Thomas. Thomas had been found dead outside his home, shot multiple times. Nine months later, Willie Francis was stopped by police in Port Arthur, Texas, suspected of being involved in drug activity. His interrogation led to the discovery of a wallet containing Andrew Thomas’s identification card.

Willie confessed to the robbery and to the murder.

His trial lasted two days. Lawyers put on a perfunctory defense. The all-White jury took fifteen minutes to decide his guilt. Willie, who was 15 at the time of the murder, was sentenced to die in the electric chair.

The day before the planned execution, the electric chair had been brought in by a state employee and a penitentiary inmate. Neither was an electrician. The following day, just after noon, Willie Francis was strapped to the chair. He made no final statement. Gilbert King, whose book on Willie Francis forms the basis of our story, describes what happened next.

And they walked Willie over to the electric chair and they strapped him in. And what happened next would put Willie's name on the front page of headlines across the country for the next couple weeks. The Executioner said, “Goodbye, Willie,” which is what they said right before they flipped the switch and then he flipped the switch. Immediately, Willie began to shake in the chair. He started going into convulsions, and the chair—if you can imagine, it's a very small room in this jail, the witnesses were warned to stay back because they didn't want to get too close to this thing—the chair began to slide in the little room, and it angled away from the witnesses, and Willie was shaking and fighting against the straps, and it looked like something was wrong. The sheriff sort of said, “This is not usual.” And then they flipped the switch off and one of the coroners and the doctor stepped forward with a stethoscope and was about to lift his shirt apart, and put it right to his chest. When the other doctor said, “It's no use to do that, he's still breathing.” And at that moment, Willie took a deep breath and started breathing, and the executioner heard this and he said, “Well, we'll give him another.” And he flipped the switch again. The doctors stepped back, and Willie started shaking again and the chair, according to witnesses, began to slide and rock on the floor. Next thing that happened is Willie screamed out. He's got a mask on and he's got a leather band in his mouth, and he screams out, “Take it off! Take it off! I can't breathe!” And the executioner is kind of incredulous seeing this, and he shoots back, “You're not supposed to breathe, boy!” And they let the current continue to go, and this goes on for at least 30 seconds, according to witnesses, until finally Willie screams out, “I am not dying!” At that point, Sheriff Reisweiber had seen enough. It just wasn't gonna happen that day, and they turned off the machine.

Willie was described as “Lucky Willie Francis” in the press. He would later claim that, “God fool’d with the electric chair,” and that, “The Lord was with me.” The State of Louisiana, however, was determined to carry out the sentence. Willie was given another date with the electric chair, less than a week later.

Earlier in this series, we talked about how the Constitution emerged from the debates at Philadelphia. Ratified in 1788, the Constitution outlines the structure of American government. Through the Bill of Rights, the first ten amendments ratified in 1791, and the post-Civil War Fourteenth Amendment, the Constitution played a significant role in protecting individual rights. It has, for example, played a role in death penalty cases like that of Willie Francis. What arguments have been raised? One has centered on the Fifth Amendment’s “double- jeopardy” provision. The provision means that a person cannot be tried twice for the same crime. Some arguments come from the Sixth Amendment. Did the defendant receive a robust defense? Was the jury an impartial one? Another argument is that the death penalty violates the Eighth Amendment’s prohibition against “cruel and unusual punishments.” Finally, arguments have drawn life from the Fourteenth Amendment, notably the Equal Protection Clause, and whether the death penalty has been applied in a discriminatory fashion. One of the most important functions of the Supreme Court, which sits atop the American judiciary, is the power of judicial review. This power allows the Court to decide the constitutionality of government actions, both state and federal. The Court first assumed the power of judicial review in a famous 1803 case, Marbury v. Madison, a case involving federal law.

Here are some examples of how the Court has exercised its power of judicial review as well as illustrations of the Constitution being used to protect the rights of individuals. We’ll continue the focus on crimes that carry the death penalty.

Throughout history, Americans have shot, hung, electrocuted, gassed, and poisoned those convicted of capital crimes. These changes in execution method have been driven by developments in technology and by concerns that the condemned be dispatched in a more “humane” fashion.

The preferred method of execution in early American history was the hangman’s noose. The electric chair took over during the middle-third of the twentieth century. And the first state to adopt electrocution as a method of execution was New York, in a case involving William Kemmler.

Let’s look at Kemmler’s case.

An alcoholic, and grocer of sorts, Kemmler used an axe to murder his lover, Tillie Ziegler in 1889. The crime was quickly followed by a confession and a trial. Kemmler was sentenced to death. His case reached the Supreme Court the following year. In its decision, the Court sided with the judgment of the New York legislature, while also arguing that the Eighth Amendment’s prohibition against “cruel and unusual punishments” only applied to the federal government. On August 6, 1890, Kemmler was strapped into the electric chair at New York’s Auburn Prison. Author Jill Jonnes describes what happened:

In fact, it was a terrible botch. They didn't give enough electricity to kill him, and they thought he was dead, and the twenty or so people assembled to see him die went up and they realized that he was still alive. People were fainting. It was so hideous. Some people had to go out into the corridor to just, you know, to be ill. And they gave him a second, much more prolonged jolt of electricity; whereupon he was finished off.

William Kemmler was finally declared dead eight minutes after the execution began.

Following Kemmler’s execution, headline writers scoffed at New York’s claim that electrocution was “humane.” The New York newspapers claimed that the condemned was, “slowly roasted to death” and that Kemmler’s death in the chair was equivalent to, “death by torture.” But doctors who performed an autopsy on Kemmler’s body concluded he had become unconscious after the first jolt of electricity, and that he had not suffered.

The Supreme Court has been tasked on a number of occasions with determining whether a specific method of execution violates the Constitution. Over recent years, the Court has upheld the constitutionality of lethal injection, and going all the way back to 1878, the Court allowed the Utah territory to execute a condemned inmate by firing squad. But the Court has not ruled any specific method adopted by the government unconstitutional. It has, however, provided some protections for individuals.

For example, the Court has embraced procedural changes that allow juries, to consider any mitigating factors a defendant wishes to present. They have struck down mandatory death sentences. The Court has issued opinions, some of which have benefitted the defendant, that have outlined which individuals can be excluded from juries in capital cases. The Court has even decided cases that have limited the application of the death penalty. To understand this, we’ll take a look at a case from Missouri.

Christopher Simmons planned, in some detail, the crime he was about to commit. Before he entered the home of Shirley Crook, he wanted to tie up and throw his victim from a bridge into a river. Only seventeen himself at the time, he assured his friends, who were also juveniles, that they would get away with the crime because of their age.

Shirley Crook was bound with electrical wire and duct tape and thrown off a railway bridge above the Meramec River. She drowned. Proud of what he had done, Simmons told his friends that he had committed murder, “because the bitch seen my face.”

Simmons was charged with a capital crime and sentenced to death. His case made its way to the Supreme Court. In Roper v. Simmons, decided in 2005, the Court addressed not whether Simmons was guilty of the crime, but whether sentencing a juvenile to death violated the Constitution.

Building upon a 1958 case called Trop v. Dulles , the Court argued that executing juveniles violated the Eighth Amendment, because such executions did not reflect “the evolving standards of decency that mark a maturing society.”

Our program has covered a lot of ground in a short period of time. We’ve talked about the role of the Constitution in protecting individual rights. We placed this discussion in the context of the death penalty and highlighted an important power of the U.S. Supreme Court, the power of judicial review.

Our program began with the story of Willie Francis. And we’ll close by returning to Cajun country. Willie Francis did not die on May 9, 1946, the date of his re-scheduled execution. His case was appealed to the U.S. Supreme Court, where the nine members of the Court split 5-4 in a decision that would seal Willie’s fate in the electric chair. Willie’s attorneys raised several objections to the state’s effort to attempt a second execution. In addition to arguing that this would violate the Constitution’s prohibition against “cruel and unusual punishments,” they also contended that sending Willie back to the chair would violate the Fifth Amendment’s “double- jeopardy” provision.

In response, the Court took the position that on that hot day in 1946, the state had not set out to compromise its own execution protocol, and that the state expected that the chair would provide a humane way of executing those who had committed a capital crime. In his Dissent, Justice Harold Burton said that sending Willie Francis back to the electric chair was akin to “death by installments.”

One year to the day after his re-scheduled execution, Willie Francis was given two jolts of electricity when he sat in Louisiana’s electric chair for the second time. He was declared dead at 12:12 p.m.

Further information on some of the issues discussed in this program, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.

PODCAST GOAL

To acquaint the student with the role of the Constitution in protecting individual rights and with one of the most important functions of the United States Supreme Court: the power of judicial review.

QUESTIONS TO PONDER

  1. Our podcast has highlighted the Constitution’s role in protecting individual rights. Counsel in capital cases have attempted to protect the rights of their clients by also drawing sustenance from the Constitution’s language. Some arguments have drawn their strength from the Eighth Amendment’s prohibition against “cruel and unusual punishments.” In 1972, in a case called Furman v. Georgia, the U.S. Supreme Court argued that the death penalty as then applied violated the Constitution. Two of the members of the Court took the position that the death penalty was unconstitutional in all circumstances. Do you think the death penalty violates the Eighth Amendment? Do specific punishments violate the Constitution’s prohibition against “cruel and unusual punishments”? Additional information on this topic can be found in both the “Supreme Court Cases” section of this document (See Furman v. Georgia and Gregg v. Georgia) and in the “Additional Materials” section. See, in particular, the comments by Justice William J. Brennan, Jr., and those made by Justice Antonin Scalia.
  1. In introducing mitigating factors, defense counsel in capital cases are attempting to paint a picture of the defendant and the crime “that would support a less harsh punishment.” What factors do you think should be considered in mitigation of a sentence of death?
  1. The United States Supreme Court’s power of judicial review is, in many ways, a fundamentally undemocratic act. In invalidating the actions of individual states, or the federal government, nine unelected individuals can overturn the decisions of the elected representatives of the people. Do you see a place for this undemocratic practice in a democracy? What arguments might you develop in support of this assumed power?
  1. In 1947, Willie Francis was executed for a murder he committed when he was 15 years old. Christopher Simmons was spared the death penalty in 2005 precisely because he was a juvenile when he murdered Shirley Crook. In deciding that American society rejected the death penalty for juveniles, the U.S. Supreme Court looked to State action and the frequency of juvenile executions. The Court also argued that juveniles as a group possessed certain characteristics (e.g. they tend to be impulsive) that made the sentence of death inappropriate. What factors (e.g., age, type of crime, mental state) should be taken into consideration in determining which individuals are eligible for the ultimate punishment? Additional information on this topic can be found in both the “Supreme Court Cases" section of this document (See Roper v. Simmons) and in the “Additional Materials" section. See, in particular, the program “Supreme Court and Juvenile Death Penalty.”

OUR SOURCES

Banner, S. (2002). The death penalty: An American history. Cambridge, MA: Harvard

University Press.

Cruel and Unusual Punishments. (n.d.). Legal Information Institute. Retrieved

October 11, 2019, from https://www.law.cornell.edu/constitution-conan/amendment-8/cruel-and-unusual-punishments

Fiorina, M. P., Peterson P. E., Johnson, B., & Mayer, W. G. (2011). The new American democracy. (7th ed., pp. 434-439, 444). New York City, NY: Pearson.

King, G. (2008). The execution of Willie Francis: Race, murder, and the search for justice in the American south. New York City, NY: Basic Civitas Books.

Latzer, B. (1998). Death penalty: Leading U.S. Supreme Court cases on capital punishment. Oxford, UK: Butterworth-Heinemann.

Lethal injection cases. (2019, July 8). Death Penalty Information Center. https://deathpenaltyinfo.org/stories/lethal-injection-cases.

O'Brien, D. M. (2017). Constitutional law and politics: Civil rights and civil liberties (10th ed., pp. 1157-1223), Vol. 2. New York City, NY: Norton & Company.

Paternoster, R., Brame, R., & Bacon, S. (2008). The death penalty: America's experience with capital punishment. Oxford, UK: Oxford University Press, Inc.

UNITED STATES SUPREME COURT CASES

Furman v. Georgia (1972) -- https://www.oyez.org/cases/1971/69-5030. In Furman, the Court struck down the death penalty as then applied. In addition to a summary of the case, the Oyez website includes links to the Court’s opinions and to oral argument.

Gregg v. Georgia (1976) -- https://www.oyez.org/cases/1975/74-6257. Four years after their decision in Furman, the Court reversed course in Gregg. The Oyez website’s coverage of Gregg includes a brief summary of the case, and links that take you to the arguments heard before the Court, and to the various opinions penned by the Court’s members.

In re Kemmler (1890) -- https://www.loc.gov/item/usrep136436/. William Kemmler was the first individual executed in the electric chair. This link, from the Library of Congress, provides access to the Court’s opinion in this pioneering case.

Louisiana ex rel. Francis v. Resweber (1947) -- https://www.oyez.org/cases/1940-1955/329us459. This link will provide you with additional insight into the case of Willie Francis. In addition to the various opinions in the Francis case, the Oyez website also includes a summary of the facts, the legal questions posed, and a brief summary of the Court’s opinion.

Marbury v. Madison (1803) -- https://www.oyez.org/cases/1789-1850/5us137. In Marbury, the Court first assumed the power of judicial review. Clicking on this link will take you to a page devoted to the case. The Oyez website includes the Court’s opinion, a summary of the facts in the case, the legal questions posed, and a brief summary of the Court’s opinion.

Roper v. Simmons (2005) -- https://www.oyez.org/cases/2004/03-633. In Roper, the Court took the position that executing individuals, who had committed their crimes at 16 and 17, violated the Constitution. On this page, you can find links to oral argument, the Court’s announcement of the decision from the bench, and the various opinions in the case. The page also includes a summary of the facts, the legal question, and a summary of the Court’s decision.

Trop v. Dulles (1958) -- https://www.oyez.org/cases/1956/70. While not a death penalty case, the Court’s decision in Trop, with its emphasis on “evolving standards of decency,” has played an important role in capital cases. The Oyez website includes links to the Court’s opinions and oral argument. The page also contains a summary of the facts, the legal question, and a summary of the Court’s conclusions.

ADDITIONAL CLIPS AND PROGRAMS FROM THE C-SPAN ARCHIVES