Should Resweber be overruled?

In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), a four -Justice plurality of this Court permitted the s tate of Louisiana to electrocute a Black teenager under the Eighth Amendment after it tried and failed once before. The decisive fifth vote in Resweber came from Justice Frankfurter and was premised on his view that the Eighth Amendment was not incorporated against the States, see id. at 470– 71 (Frankfurter, J., concurring), a proposition rejected by the Court fifteen years later, see Robinson v. California, 370 U.S. 660, 666 –67 (1962). Justice Frankfurter further noted how “strong” his “personal feeling of revulsion” was at the “State’s insistence on its pound of flesh.” Resweber, 329 U.S. at 471 (Frankfurter, J., concurring). The Resweber opinion was released eleven years before this Court centered its Eighth Amendment jurisprudence on “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). In the seventy -eight years that have elapsed since Resweber, this Court has never again taken up the question of whether multiple execution attempts can violate the Eighth Amendment. During the modern era of the death penalty, only two inmates have ever been executed after sur viving an earlier attempt, out of more than 1,600 prisoners who have been put to death during the same period of time. In both cases, states used a different method than the one that had previously failed. Petitioner Thomas Creech is the only American inmate since Willie Francis who has been threatened by the same execution method used against him once before. Because “Resweber . . . remains good law ,” the Idaho Supreme Court rebuffed Mr. Creech’s Eighth Amendment claim in the absence of an evidentiary hearing and without any consideration of the evolving standards of decency. Creech v. State , 558 P.3d 723, 733 (Idaho 2024). The question presented is : Should Resweber be overruled? PETITION FOR WRIT OF CERTIORARI – Page ii