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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Looking Back: A Century Without Executions

This spring marks the 100th anniversary of the abolition of capital punishment in Minnesota, a practice that has had a controversial and colorful history.

The late comedian Pat Paulsen, who occasionally ran for president as a gag, was once asked whether he was in favor of capital punishment:

“No,” the comic deadpanned, “Washington, D.C. has already been punished enough.” Paulson’s line drew laughs, but few votes.

But capital punishment is no laughing matter.

Minnesota has been without capital punishment for a century, abolishing it nearly 100 years ago, on April 22, 1911.  Before it was eliminated, capital punishment developed a vivid history populated by colorful characters, gaffes, and gasps.

The decision in 1972 by the Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972) outlawed capital punishment as then imposed throughout the country. Gradually, a number of states enacted new capital punishment laws conforming to Supreme Court guidelines.  By the spring of 2011, 34 states had done so.  The federal government also weighed in, by law deeming more than 40 offenses worthy of capital punishment and enacting four antiterrorism crimes after the September 11, 2001 attacks.

The Minnesota ban on capital punishment, although longstanding, is not unique.  Sixteen states and the District of Columbia proscribe such executions.  Only two states have banned it longer than Minnesota: neighboring Wisconsin since 1853 and Maine since 1887.  All of the states surrounding Minnesota, except South Dakota, bar capital punishment.

Today, capital punishment seems to be on the decline nationally. Illinois, where some notorious “innocent” men were belatedly released from Death Row, this spring passed legislation abolishing capital punishment that awaits signature by the governor. The number of executions nationwide shrank by 12 percent last year to 46, with Texas, at 17 executions, topping the list of 12 states that actually executed someone in 2010.  Also in 2010, 114 people were sentenced to death, bringing the number of the condemned in the United States to about 3,200.

Although Minnesota is one of the 16 states without capital punishment, the leadership in this state, like the erstwhile presidential candidate Paulsen, has shown little inclination to revive it.  When heinous murders occur from time-to-time, calls emanate to reinstitute the practice.  But none has garnered much traction in Minnesota, and public support for capital punishment has
regressed.

While there is little likelihood that capital punishment will be restored in Minnesota in the immediate future, the state can look back at a colorful history of capital crimes and punishments that came to a screeching, perhaps permanent, halt 100 years ago.

Female First

Long before women had the right to vote, or many other legal rights, they had the privilege of equal treatment on the gallows. The first person lawfully executed in Minnesota was a St. Paul woman, Ann Bilansky.  She was convicted of poisoning her husband in March, 1859, less than a year after Minnesota entered the Union. A year later she was hanged, hanging being the only method authorized for capital punishment in Minnesota.  Bilansky’s execution led to legislation, enacted in 1868, barring capital punishment unless specifically prescribed by a jury.

Following the Bilansky execution, 25 more Minnesotans were hanged, as this remained the only method of capital punishment for committing murder on 23 occasions.  Minnesota twice had double-header hangings: a pair of executions on the same gallows.

These figures pertain only to state-ordered executions and do not include 38 Native Americans hanged by the U.S. Army in Mankato in the aftermath of the Sioux War in the summer of 1862 near New Ulm. More than 300 captured Sioux warriors were destined for death, but President Lincoln reprieved all but 38 of them, who went to the gallows the day after Christmas.  Nor do they include unsanctioned executions such as the lynching of three African-American circus workers by a vigilante group in Duluth in 1920.

Legal Loopholes

One rogue who managed to find a loophole in the law in order to avoid a noose around the neck was Cole Younger, part of the notorious James Brothers Gang, which staged the historic robbery at The First National Bank in Northfield on September 7, 1876.  The daylight debacle, which resulted in the death of a teller and two gunmen, turned out to be the downfall of the James Gang.  Commemorated in many books and movies, the incident is still recalled annually in Northfield at its “Jesse James Days” celebration each fall.

Younger, one of three brothers captured after the robbery, managed to avoid the death sentence that seemed inevitable.  Because the capital punishment law since the Bilansky execution required a jury verdict to trigger execution, Younger craftily dodged the gallows by pleading guilty to murder shortly before the trial.

Cole’s prudent plea averted the death penalty.  The legendary figure was imprisoned until 1901 in Stillwater, where he founded the prison newspaper, a publication that has since won national acclaim.  His two brothers were sentenced to life in prison; one of them died in jail and the other was released with Cole at the turn of the century.

The James brothers, Jesse and Frank, met different fates.  Jesse was killed by Robert Ford, a member of his gang and emissary of the Governor of Missouri, in 1882. Older brother Frank lived to a ripe old age of 72.  Neither staged another major robbery after the Northfield escapade, nor did either spend any time in prison for their various transgressions in Northfield or elsewhere.

Day’s Day

Younger’s escape from the gallows led to more changes in the capital punishment law.  In 1883, the measure was amended to require capital punishment for first-degree murder, unless “exceptional circumstances” justified a life sentence, which would be decided by a trial judge rather than a jury.

Controversy over the practice of conducting executions in public, often before large and sometimes boisterous crowds, prompted another piece of legislation.  Known for its author, a reformist Minneapolis legislator, the “John Day Smith Law” restricted public access to hangings by mandating that they be conducted before sunrise and in jail confinement rather than public gathering places.

In addition to limiting public purview, the law prohibited newspaper reporters from attending executions or publishing any matters relating to an execution “beyond the statement of the fact that such convict was on the day in question duly executed.”  That measure would withstand constitutional challenge by the media, but would ultimately lead to the demise of capital punishment in the state.

The case—and controversy—that paved the way to the death of capital punishment in Minnesota arose from the 1905 murder in St. Paul of a teenage boy, William Williams, by a 27-year-old former inmate at the St. Cloud Reformatory.  The hanging took place in the basement of the Ramsey County Courthouse.  Because the length of the rope was miscalculated, the murderer was left dangling for nearly 15 minutes before he was declared dead, accompanied by gasps from the astonished observers, including the statutorily banned media.

Despite the ban enacted in the “Day” law, newspapers had frequently reported about executions without sanctions.  Following that customary practice, front-page newspaper stories about the botched event were published and their reports on its brutality caused public clamor. This led the governor, John Johnson, to disown capital punishment, threatening to “resign” if capital punishment persisted.

Three daily newspapers in the Twin Cities that published articles about the hanging were charged with violating the “Day” law.  They had their day in court, challenging the measure on grounds that it violated both federal and state constitutional protections of freedom of the press, a proposition that was rejected by a Ramsey County District Court judge.

The Minnesota Supreme Court upheld the lower court ruling in 1907 in a case entitled State v. Pioneer Press, 100 Minn. 173, 110 N.W. 867 (1907).  The court denied the constitutional claims on grounds that the reporting ban constituted a valid way to “avoid exciting an unwholesome effect on the public mind.”  The court’s rebuff of the media’s claim was accompanied by the casual remark that the 1st Amendment does not apply to the states, which proved to be the precursor for a pair of notable Minnesota cases before the United States Supreme Court.  These set the stage for the Supreme Court’s adoption of the “incorporation” doctrine by which most provisions of the Bill of Rights have been applied to the states.

The post-Pioneer Press process began in 1916 in Minneapolis & St. Louis R.R. Co. v. Bombolis,  241 U.S. 211 (1916), in which the Supreme Court rejected the claim of constitutional incorporation in a case from Minnesota, holding that the requirement of jury unanimity contained in the 7th Amendment does not apply to the states.

But 15 years later, in the historic case of Near v. Minnesota, 283 U.S. 697 (1931) , the High Court struck down a Minnesota “public nuisance” law that allowed suppression of “offensive” publications.  In so doing, it applied the 1st Amendment to the states, a proposition that the Court deemed unexceptionable, notwithstanding the earlier ruling in Bombolis rejecting that concept.  The Court in Near stated that it was “no longer open to doubt” that the freedom of press and speech clause of the 1st Amendment applied to “invasions by state action.”

While the “Day” law carried the day in keeping executions under wraps, the public outcry over the woeful Williams hanging led the Minnesota Legislature five years later to outlaw capital punishment in 1911.  The measure was enthusiastically signed into law by Gov. Johnson, upholding his vow after the Williams debacle that he would never again “aid in the execution of a condemned man.”

The measure, now Minn. Stat. §609.10, outlawed capital punishment, replacing it with life imprisonment as the sanction for first-degree, premeditated murder.  The new measure went into effect on April 22, 1911.  No one has been lawfully executed in Minnesota since then.

Capital Conclusion

Capital punishment has been debated, discussed, dodged, and decimated. But it is beyond cavil that the practice had a colorful lore long before the past century of quietude.  No one knows what may occur in the years ahead.

As for the future of capital punishment in Minnesota, hang on to see what might happen.

 

 

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