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With all due respect?

Every Issue

Cite as: December 2009 83(12) LIJ, p.82

It’s all in the execution dear boy

Everyone has their own favourite legal maxim but the trouble is many of these are just plain wrong. Sir Roderick George Smythe-Walters sorts fact from fiction.

I remember British statesman Edmund Burke once said to me – “Roddy, all that is necessary for the triumph of evil is that good men do nothing”.

His comment becomes all the more apposite as we near the shameful 40th anniversary of the year that the Judicature Act joined the courts of law and equity in New South Wales.

Now, to today’s topic: the death penalty. Although the more appropriate segue would draw a link between the drafters of the Judicature Act and the fate they deserved, for the delicate among you I will merely note that in Australia the Courts of Chancery and the death penalty have met the same fate. Abolition.

Accordingly, it was a reader from one of Her Majesty’s former colonies – the state of Virginia – who this month has asked for advice: can a person be executed twice?

The Eighth Amendment to the US Constitution prohibits “cruel and unusual punishment”. Recently, it has been suggested that the effect of the Eighth Amendment is that if a person survives an attempted execution, they must be released as it would be cruel for the state to try again.

There is, of course, nothing new about difficulties in executions. In fact, the first electrocution in New York’s Sing Sing Prison involved a faulty electric chair. The inmate was, however, executed on a second attempt before lawyers could assemble.

The problem of failed executions came to be considered by the US Supreme Court in 1947. A man named William Francis had been sent to the electric chair, the switch was thrown, but nothing happened. On being taken back to his cell, Francis filed a case to the Supreme Court claiming any attempt to “try again” would be unconstitutional.

So became the case of Louisiana v Resweber.

There it was held by five judges to four that it was permissible to attempt to re-execute the offender.

The Court held that the failure of the first execution was not such a sufficiently traumatic event that it made any subsequent attempt cruel or unusual.

The Court used an example of a fire in a prison, arguing that such an experience could be just as frightening and unfortunate for the prisoner but wouldn’t stop the state from being allowed to execute.

Francis must have been surprised that this point failed.

Like any good US constitutional case, the argument did not end there. Francis submitted that re-execution would breach the Fourteenth Amendment – the right to equal protection under the law. Francis argued that being executed twice meant that he wasn’t treated the same as other prisoners. The Court responded that the same law applied to every prisoner – the requirement of being put to death – and that Francis was therefore being treated equally.

A little while later, Francis received his equal treatment.

This may change. The trend over the past 100 years has been to narrow the circumstances where the death penalty will be appropriate. Since 2002 the Supreme Court has held that the execution of the mentally impaired is a cruel and unusual punishment. An IQ test is now used during the sentencing phase. It is unclear whether performing well on that test could be considered a demonstration of low IQ.

So it may be that the Supreme Court may one day overturn the conclusion in Francis’ case. But for now I can advise that alas, it is possible to be executed twice under the death penalty.

Verdict: True (for now).

Got a question for Sir Roderick?

Email it to, or fax 9607 9451 or mail C/- LIJ, 470 Bourke Street, Melbourne 3000.


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