In its recently concluded term, the U.S. Supreme Court overturned a Kansas Supreme Court judgment regarding that state's imposition of the death penalty. As in many states, juries in Kansas consider mitigating and aggravating factors when deciding whether to sentence a defendant to death. Kansas law requires that when the result is a tie -- when the circumstances weighing for and against the death penalty are "in equipoise" -- then the jury must impose the death sentence.

The Kansas Supreme Court ruled that this violated the Eighth and 14th amendments to the Constitution. The U.S. Supreme Court decided otherwise, upholding the Kansas law in a 5 to 4 opinion that revealed a deep fracture in the court and raised the question of when justices can or should detach their legal views from their moral ones.

Justice Antonin Scalia attacked the four dissenters for contributing to international "sanctimonious criticism of America's death penalty." In dissenting, Justice David H. Souter described the Kansas equipoise law as "morally absurd," stating that "we are thus in a period of new empirical argument about how 'death is different' " because "False verdicts defy correction after the fatal moment."

Questions of death and the abstract notion of judicial restraint are nothing new for the court, though, as an example from six decades ago will attest. In November 1946 one of the strangest capital punishment cases in American history came before the Supreme Court and was deadlocked, 4 to 4, until Justice Felix Frankfurter, who was opposed to the death penalty, voted against his conscience and allowed the state of Louisiana to send a 17-year-old black youth named Willie Francis to the electric chair -- for the second time.

Francis had been convicted of murdering a St. Martinville pharmacist. The trial lasted a little more than a day, and the bulk of the evidence against him was based on a confession obtained without counsel present. Francis's court-appointed attorneys called no witnesses and rested their case without putting on a defense. The 12 white men on the jury needed just 15 minutes to reach a verdict, and Francis was sentenced to death by electrocution. No appeals were filed on his behalf as crucial deadlines passed.

On May 3, 1946, Willie Francis was given last rites and strapped into the chair. When the switch was thrown, his body tensed and convulsed and the 300-pound chair began to rock and slide on the wooden floor. But something was wrong. "I am not dying!" he screamed.

Finally the current was shut down. Francis was unstrapped from the chair and led back to a cell. It was determined that six months before Francis's execution date, a drunken guard and inmate had improperly wired the electric chair, causing it to malfunction.

Bertrand DeBlanc, a young Cajun lawyer, and J. Skelly Wright, then a maritime lawyer in Washington, brought Francis's case before the U.S. Supreme Court. After arguments, the initial vote to allow Louisiana to return Willie Francis to the electric chair stood at 7 to 2, with Justice Stanley Reed of the majority describing Francis's ordeal as "an innocent misadventure."

But Justice Harold Burton managed to persuade both Justices Frank Murphy and Wiley Rutledge to join him and Justice William O. Douglas in the dissent. "How many deliberate and intentional reapplications of electric current does it take to produce a cruel, unusual and unconstitutional punishment?" Burton wrote. "If five attempts would be 'cruel and unusual,' it would be difficult to draw the line between two, three, four and five."

The vote now stood at 5 to 4. Frankfurter was wavering, until he finally wrote to Burton, "I am sorry that I cannot go with you, but I am weeping no tears that you are expressing a dissent."

Frankfurter was so troubled by his own vote that he later attempted to effect politically what he had been unwilling to do judicially. He reached out to an attorney friend in Louisiana to use his influence on Gov. Jimmie Davis to have the death sentence of Willie Francis commuted to life imprisonment -- a virtually unprecedented attempt to overturn his own decision. "I have little doubt that if Louisiana allows Francis to go to his death," Frankfurter wrote, "it will needlessly cast a cloud upon Louisiana for many years to come, and, what is more important, probably leave many of its citizens with disquietude."

Some legal scholars today believe the Supreme Court botched the Francis decision just as badly as the drunken guard and inmate from the Louisiana State Penitentiary botched the youth's execution. Louisiana was not moved by Frankfurter's plea. It returned Francis to the electric chair on May 9, 1947, and killed him.

Gilbert King is writing a book about the Willie Francis case.