Isn't a second attempt at an execution after a botched attempt unconstitutional? United States Supreme Court said, "no."

The failed execution of Romell Broom got me thinking about that rare history of failed execution attempts.  It's not entirely unprecedented.  Several number of public hangings failed to kill the condemned.  Firing squads?  Yeah, people have survived them other than in cheesy "X-men" movies.

At one time, it was customary that if a person survived their execution that they'd likely be release or spared the gallows as the failure of them to die was viewed as divine intervention.  Now, we live in a more "enlightened" time when divine intervention has been replaced with government incompetence.

One of the biggest flaws in caselaw is that sometimes a situation is so rare that it's impossible to find a case that deals with your factual situation.  Amazingly, the United States Supreme Court has already answered the constitutional question of whether a later attempt to execute a condemned inmate offends the constitution after the State botched an earlier execution attempt.

In Louisiana ex rel. Francis v. Resweber (1947), the United States Supreme Court ruled that a subsequent execution attempt does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.  Although several media outlets in discussing Francis have called that a 5-4 decision, that is not precisely accurate.  Although it's accurate to say that a bare majority of the U.S. Supreme Court agreed in judgment that a subsequent execcution attempt would not violate the federal constitution, the decision itself was a plurality decision--which historically weakens the weight of precedent it should be given.

The actual breakdown was a 4-1-4 decision.  The 1 is for the concurring opinion of Justice Frankfurter who ruled on separate grounds in favor of the majority, but did so on the grounds that the Eighth Amendment does not apply to the States under the 14th Amendment.  Incidentially, Francis was an African-America sentenced to death at the age of 16 for allegedly killing his white boss even though the murder weapon belonged to a sheriff deputy who had once threaten to kill the victim (the murder weapon "disappeared" before Francis' trial in which his appointed lawyer called no witnesses or put on any defense.)  Justice Frankfurter allegedly lobbied his old college roommate, who just happened to be the then Governor of Louisiana to spare Francis' life.  On May 9, 1947, Francis was successfully executed just four months after the U.S. Supreme Court's decision; the Governor granted no reprieve.

In 1962, the U.S. Supreme Court ruled in Robinson v. California, 370 U.S. 660, that the Eighth Amendment prohibition against cruel and unusual punishments did, in fact, apply to the States.  Thus, essentially rejecting Justice Frankfurter's concurring opinion in Francis.  Frankfurter was still on the Court, but did not participate in deciding Robinson because of a stroke he had that year which lead to his retirement from the Court.

So, I hope this answers the reader who e-mailed me suggesting that it's "obvious" that a second attempt to execute Broom would violate the Constitution.  After all, Justice Scalia believes that the constitution doesn't forbid the execution of the actually innocent so long as a jury found them guilty based on the evidence presented at the time.