In the 1946 case Louisiana ex rel. Francis v. Resweber, Sheriff, et al., Willie Francis was convicted of murder and sentenced to death by electrocution in Louisiana. However, due to a mechanical malfunction during his execution attempt, he survived. His lawyers argued that a second attempt at execution would constitute cruel and unusual punishment under the Eighth Amendment as well as double jeopardy under the Fifth Amendment of the U.S Constitution. The Supreme Court ruled against Francis with a 5-4 decision stating that while unfortunate and regrettable, technical malfunctions do not violate constitutional protections against cruel or unusual punishment nor does it amount to double jeopardy since there was no intent behind the failure of first execution attempt.

In the dissenting opinion for Louisiana ex rel. Francis v. Resweber, Justice Harold Hitz Burton argued that subjecting Willie Francis to a second execution attempt after the first one failed due to mechanical error constituted cruel and unusual punishment in violation of the Eighth Amendment. He contended that while there was no intention to torture, it did not change the fact that Francis would undergo mental suffering from anticipating his own death again. Furthermore, he noted this case presented an opportunity for courts to decide whether or not they should tolerate any degree of torture under such circumstances. Justice Burton believed that even unintentional infliction of unnecessary pain is constitutionally impermissible during executions.