Skip to main content

Cruel and Unusual History

July 8, 1999. Florida. The botched execution of Allen Lee Davis. THE Supreme Court concluded last week, 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 his majority 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 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.

By Gilbert King, author of “The Execution of Willie Francis: Race, Murder and the Search for Justice in the American South.”

Source : The New York Times, April 208

Photo: July 8, 1999. Florida. The botched execution of Allen Lee Davis. "Before he was pronounced dead ... the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair."
His execution was the first in Florida's new electric chair, built especially so it could accommodate a man Davis's size (approximately 350 pounds).
Later, when another Florida death row inmate challenged the constitutionality of the electric chair, Florida Supreme Court Justice Leander Shaw commented that "the color photos of Davis depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida." Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina (q.v.), calling the three executions "barbaric spectacles" and "acts more befitting a violent murderer than a civilized state." Justice Shaw included pictures of Davis's dead body in his opinion.
The execution was witnessed by a Florida State Senator, Ginny Brown-Waite, who at first was "shocked" to see the blood, until she realized that the blood was forming the shape of a cross and that it was a message from God saying he supported the execution. More on botched executions in the U.S.

Comments

Most viewed (Last 7 days)

Oklahoma executes James Pavatt

Pavatt claimed innocence in the slaying of an Oklahoma City advertising executive for insurance money. His co-defendant and former lover Brenda Andrew is also on death row. James Pavatt made no final statement before being executed Thursday for killing his lover’s estranged husband nearly 25 years ago. Pavatt merely shook his head when asked by Oklahoma Department of Corrections Chief of Operations Jason Sparks if he had any last words. Pavatt appeared to share a quick word with Michael Scott, his spiritual advisor, after microphones inside the death chamber had been cut off.

Oklahoma Death Row inmate James Pavatt scheduled to be executed Thursday

James Pavatt is scheduled to be executed on Thursday for the 2001 killing of an Oklahoma City man. OKLAHOMA CITY—Oklahoma Death Row inmate James Pavatt is set to be executed for the 2001 murder of advertising executive Rob Andrew. His execution is scheduled for Nov. 12, 2026. In 2004, Pavatt and his lover/co-conspirator, Brenda Andrew, were sentenced to death for planning the killing of her estranged husband in an attempt to claim his $800,000 life insurance policy. Brenda is the only woman on Oklahoma’s death row.

Judge allows Tennessee death row inmates to include botched executions in lawsuit

NASHVILLE, Tenn. (WKRN) — Two failed executions in Tennessee are now at the center of a growing legal battle over the state’s lethal injection protocol after a judge ruled in favor of death row inmates Friday. A Davidson County judge ruled death row inmates can expand their lawsuit to include new allegations stemming from the botched executions of Tony Carruthers and Christa Pike. The original lawsuit, filed in March 2025, argues Tennessee’s death penalty protocol violates the constitutional rights of death row inmates with complex medical conditions. More than one year later, the state then failed to execute two inmates: Tony Carruthers and Christa Pike.

Two men set to be executed in Texas and Oklahoma today

The U.S. was preparing to carry out two executions on Thursday, one in Oklahoma and one in Texas. In Texas, the condemned man is John Allen Rubio, 46, who is set to be put to death at the state prison in Huntsville. He was convicted of beheading three young children he was raising in a 2003 killing that rattled a community along the U.S.-Mexico border. The other man facing execution is James Pavatt, 73, who is set to die by lethal injection at Oklahoma's state penitentiary in McAlester.

Texas executes John Rubio

Texas man who killed 3 children is put to death, hours after an Oklahoma execution James Pavatt was put to death in Oklahoma for Rob Andrew’s killing. In Texas, John Allen Rubio was executed for the deaths of Julissa Quesada, John E. Rubio, and Mary Jane Rubio.  A Texas man convicted of fatally stabbing and beheading 3 young children in a squalid, windowless apartment in 2003 was executed Thursday evening, hours after Oklahoma put another man to death. 

Why Many Americans Think Christa Pike Should Undergo a Second Execution Attempt

On October 20, Reuters released the results of a survey showing that 33% of the American public want Tennessee to try again to put Christa Pike to death. Another 26% are undecided. That means 59% of the public would support or be open to such a possibility. I want to suggest a reason why. Second execution attempts are rare in this country and, as a result, the public knows little if anything about them. That may help explain why so many would give Tennessee another chance to kill Christa Pike.

Iran executes three more January protesters accused of spying for Israel, US

In a statement, the judiciary said that “the death sentences of Hassan Deoband, Hamid Kazemi, and Reza Zangana were carried out on charges of ‘participating in operational action for the infamous Zionist regime and the United States and hostile groups.’” ERBIL, Kurdistan Region of Iraq – Iran on Sunday executed three more protesters over their involvement in the nationwide demonstrations in January, the judiciary announced, accusing them of spying for the United States and Israel and destroying infrastructure. 

Alabama executes Michael Shannon Taylor

Alabama executes man convicted of 1991 double murder  The state of Alabama carried out the execution of 54-year-old Michael Shannon Taylor Thursday night for the 1991 murders of an elderly Etowah County couple, 35 years and 1 day after the crime.  Taylor, convicted in 1993 on 3 counts of capital murder, was sentenced to death unanimously by a jury for killing 83-year-old Ivan Ernest Moore and 79-year-old Lucille Moore inside their Gadsden home during a robbery. Taylor was 19 at the time. 

Iran | 10 executed in Ahvaz, Isfahan, Karaj

Four prisoners, including an Afghan national, were executed at Ghezel Hesar Prison in Karaj on Wednesday, November 4, 2026. All four had been sentenced to death under Iran’s qisas (retributive justice) laws on murder charges. According to information obtained by the Hengaw Organization for Human Rights, one of the executed prisoners was identified as Gol Agha Eskandari, an Afghan national. Eskandari had been convicted of murder following a dispute between neighbors in the Khorasan Square area of Tehran in July 2024 and subsequently sentenced to death.

Florida executes Jesse Guardado

Man convicted of 2004 killing is put to death in Florida’s 19th execution this year, tying a record Florida carried out a record-tying 19th execution of the year in an unusual instance of 3 states administering the death penalty on the same day. Jesse Guardado was pronounced dead at 6:13 p.m. following a 3-drug injection at a state prison in Starke. He had pleaded guilty to fatally stabbing 75-year-old Jackie Malone inside her Walton County home in 2004 before stealing her jewelry box, $80, and other valuables to buy drugs. The woman had helped him get a job and housing.