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Nebraska repeal recalls death penalty here

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“[N]obody who was not from the losing classes has ever been thrust into a death cell in these United States.”  – Christopher Hitchens, “Love, Poverty & War” (1998)

 “[M]ore people would be alive today if there were a death penalty.”   – Former first lady Nancy Reagan  

Recent developments have focused attention on the death penalty.

The startling repeal of capital punishment last month by the Nebraska Legislature, narrowly overriding a veto by the governor, highlighted moral, law enforcement, and legal issues relating to the importance of the death penalty for criminal offenders.

The abolition was particularly noteworthy given the Cornhusker State’s conservative tradition, including a large Republican majority in its unique unicameral (one-house) legislative body. The repeal, supported by a bipartisan coalition consisting of many Republicans in the Legislature and allied voices outside of it, made Nebraska the 18th state, along with the District of Columbia, to eliminate the death penalty. It’s the first jurisdiction to do so since Maryland two years ago, and the first conservative state since North Dakota in 1973. It was the third time since 1979 that similar bans were vetoed by the Nebraska governor, but this time the veto was overridden.

The Nebraska death penalty repeal came less than two weeks after a federal jury in Boston recommended the death sentence for Dzhokhar Tsarnaev, one of the Boston marathon bombing brothers, whom it convicted a couple of weeks earlier and who is scheduled to be formally sentenced on Wednesday, June 24.

But the issue is not concluded in Nebraska yet. The state attorney general has announced a plan to challenge the constitutionality of changing the sentences of 10 inmates on death row, while death penalty supporters are circulating a petition seeking the necessary 115,000 signatures to put the matter before the electorate in a referendum next year.

Minnesota is among the states without capital punishment; it has been barred here since 1911. Its abolition followed a botched hanging five years earlier at the Ramsey County Courthouse that stirred public disfavor. The repeal in Nebraska, coupled with the Boston conviction, provides an opportunity to review the law and lore of the long-banned death penalty in this state, highlighted by cases raising issues ranging from freedom of press to double jeopardy.

Penalty patterns

The Minnesota ban on capital punishment, although long-standing, is not unique. Only two jurisdictions have banned it longer than Minnesota: Wisconsin since 1853 and Maine since 1887. All of the states adjoining Minnesota except South Dakota prohibit capital punishment.

The decision by the U.S. Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), deeming the death penalty too arbitrary and erratic, outlawed capital punishment as then imposed throughout the country 43 years ago. Gradually, a number of states over the past four decades have enacted new capital punishment laws, trying to conform to Supreme Court guidelines.

While 32 of them now have capital punishment laws on the books, the federal government also weighed in, deeming some 41 offenses worthy of the death penalty, including several terrorism crimes enacted after the Sept. 11, 2001, attacks.

The pattern of use of the death penalty has varied over the years. But imposition of it is definitely on the decline nationally. Capital punishment was imposed 35 times in this country last year, the fewest since 31 inmates were executed in 1994. Last year’s figure represents a nearly two-thirds decline in the number of executions over the past 50 years.

Three states, Texas, Missouri and Florida, accounted for nearly 80 percent of the executions in 2014, with 10 each in Missouri and Texas and eight in Florida. There were three in Oklahoma, two in Georgia and one each in Arizona and Ohio. Last year’s toll brings the total of condemned in the country, at least according to official count, to about 3,400.

Missouri is becoming an epicenter of executions. Earlier this month, it executed a man who murdered his former girlfriend and one of her daughters 15 years ago, despite a plea for clemency by one of the daughters who survived the heinous crimes. It was the fourth execution in the Show Me State this year, and 25 percent of the total of 16 throughout the nation so far in 2015.

Paralleling the diminution of executions, there also has been a significant drop in the number of death sentences imposed during the past year. In 2014, capital punishment sentences were handed down to 72 offenders, barely 20 percent of the 315 that were sentenced to death 20 years ago. Additionally, seven death row inmates were fully exonerated in 2014, although each spent an average of 30 years on death row before being freed.

Minnesota matters

Before the abolition of capital punishment in Minnesota more than a century ago, many murders in this state led to hanging, the prescribed method for imposing the death penalty. From the beginning of statehood in 1859 through the abolition in 1911, there were 27 official hangings, according to the aptly named Office of Governor Executions, although only on 25 occasions because there were two double-headers: a pair of hangings on the same day on the same gallows. That figure does not include the 38 Dakota Indians executed in a mass hanging in 1862 for their participation in the short-lived Dakota-settlers conflict. Nor does it include the number of “unofficial” hangings, undertaken by vigilantes or lynch mobs, such as the three African-American circus workers who were hanged in downtown Duluth in 1920, apparently due to fabricated rape charges; a pair of men strung up outside of Glencoe in 1896 following their murder of a beloved county sheriff; or the suspected child molester hanged by a mob a decade earlier at a place near where the Convention Center now stands in downtown Minneapolis.

The enumeration of executions also does not take into account a number that occurred prior to statehood, often under quite rudimentary legal processes.

First female

Women in Minnesota gained the right to vote, at least in some school board and library elections late in the 19th century, before suffragists won the right to vote throughout the country in 1920.

But a St. Paul woman attained the distinct dishonor of being the first person to be placed on the gallows in this state, one year after Minnesota joined the Union, on the eve of the Civil War. The woman, Ann Bilansky, was tried and convicted of murder in 1859 by a St. Paul jury. She was hanged despite the subsequent remark of the prosecutor to Gov. Alexander Ramsey that he had “grave and serious doubts” about whether the woman had received a fair trial.

His qualms did not stop the hanging, but her execution did lead to legislation enacted a decade later proscribing capital punishment unless specifically determined by a jury.

Cole’s case

One of the notorious members of the James Brothers gang, Cole Younger, managed to find a loophole in the law to avoid a noose around his neck following his capture in the historic robbery of First National Bank in Northfield on Sept. 7, 1876. The daylight debacle, which resulted in the death of a teller and two of the gunmen, led to the downfall of the James gang. The incident, commemorated in many books and movies, is recalled annually in Northfield at its Jesse James Days celebration each fall.

The most cerebral of the James gang, Cole had reason for a muted celebration himself after he managed to avoid being hanged for his participation in the robbery. One of three brothers captured after the incident, he was headed for what seemed to be an inevitable death sentence. But he averted the gallows by pleading guilty to murder shortly before his scheduled trial, which precluded imposition of capital punishment. Because the post-Bilansky law required a jury determination to trigger execution, the state could not subject Cole to capital punishment.

Dodging the death penalty, Cole remained in prison in Stillwater until 1901, 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 dying in jail and the other one being released with Cole at the turn of the 20th century.

The James Brothers, Jesse and Frank, met different fates, neither on the gallows. Jesse was killed by Robert Ford, a member of his gang and secret informant of the governor of Missouri in 1882. His older brother, Frank, turned himself in and then lived to a ripe old age of 72, never having spent any time in prison for the Northfield robbery or any other transgressions.

Day decision

Capital punishment in Minnesota encountered more changes after Younger’s escape from the noose. The measure was amended in 1883 to require capital punishment for first-degree murder unless “exceptional circumstances” justified a life sentence, a matter to be decided by a judge rather than a jury. At that time, executions were conducted in public, often before large and often boisterous crowds, which prompted another law. Known for its author, a reformist and legislator from Minneapolis, the “John Day Smith” law prohibited public access to hangings, demanding that they be conducted before sunrise and in confined jail surroundings, rather than public gathering places.

In addition to limiting public participation, the law also prohibited newspaper reporters from attending executions or publishing any matters relating to a hanging “beyond the statement of the fact that such convict was on the day in question duly executed.” That measure withstood constitutional challenges and would also lead to the demise of capital punishment in the state.

The case and ensuing controversy that led the way to the death of capital punishment in Minnesota arose from the 1905 murder in St. Paul of a teenage boy and his mother for which a 27-year-old former inmate of the St. Cloud reformatory, William Williams, was convicted. His hanging in the basement of the Ramsey County Courthouse turned into a debacle because the length of the rope was miscalculated, leaving him dangling for nearly 15 minutes from the gallows before he was declared dead. The astonished observers included some members of the statutorily banned newspapers, which had frequently reported in detail about executions, despite the proscriptions in the Day law.

Following customary practice of the era, front page newspaper stories about the botched Williams execution were published, and the reports on it caused a public uproar, leading the governor, John Johnson, to disown capital punishment. The popular three-term governor said he would never preside over another execution and threatened to resign if the practice persisted.

Johnson’s jaundiced view of the death penalty spurred the movement toward abolition, which culminated six years later in a measure, now Minn. Stat. § 609.10, which provides life in prison as the only permissible sanction for first-degree, premeditated murder.

But prosecutors were not so leery. They charged three daily newspapers in the Twin Cities that published articles about the hanging with violating the Day law. The press challenged the measure on grounds that it violated both federal and state constitutional protections of freedom of speech, an assertion that was rejected by a Ramsey County District Court judge.

The Minnesota Supreme Court upheld the lower court ruling in State v. Pioneer Press, 100 Minn. 173, 110 N.W.867 (1907), denying the constitutional claims on grounds that the reporting ban constituted a valid means to avoid exciting and unwholesome effect on the public mind, and rebuffing the newspaper’s claim. The court added a casual remark that the First Amendment to the U.S. Constitution does not apply to the states, an observation that became the precursor for a pair of notable subsequent cases before the U.S. Supreme Court that changed constitutional history.

The first of those came nearly a decade later, in 1916, in Minneapolis & St. Louis R.R.Co. v. Bombolis¸ 241 U.S. 211 (1916), in which the high court rejected a claim that the provisions of the Bill of Rights apply to the states, the doctrine that later became known as “incorporation.” The justices in Bombolisheld that the federal constitutional requirement under the Seventh Amendment of unanimity of jury verdicts in civil cases does not apply to the states.

However, 15 years later, in the historic case of Near v. Minnesota283 U.S. 697 (1931), the high court struck down the Minnesota “public nuisance” law that allowed suppression of “offensive” publications, applying for the first time, the freedom of expression provision of the First Amendment to the states. Disregarding the earlier ruling in Bombolis, the Court found the “incorporation” concept unexceptionable, stating in Near that it was “no longer open to doubt” that freedom of speech and press clause of the First Amendment apply to “invasions by state action.” That determination was the forerunner for “investigation” of most, but not all provisions of the Bill of Rights to the states.

Capital punishment in Minnesota has a strong history and its effect on jurisprudence in this country has been profound, as reflected in late Supreme Court rulings. Yet, the specter of capital punishment returns from time-to-time. There have been nearly 2,000 legislative proposals to reinstate in at various times, including as most recently as 1994, although there was a long gap of no bills from 1937 to 1974. None of the proposals has made it out of either house of the Legislature, despite occasional flare-ups, the movement to restore capital punishment is not likely to generate action. To the contrary, the trend seems to be moving in the opposite direction, and Minnesota is unlikely to jump back on the bandwagon of capital punishment in so many jurisdictions are jumping off it.

Minnesotans seem, on balance, to adhere to the position espoused by the late comedian Pat Paulson, who hung around with the Smothers Brothers. During one of his periodic mock campaigns for President, he retorted in characteristic deadpan fashion to a question whether he supports capital punishment: “No, Washington, D.C., has been punished enough.”

Minnesotans seem to subscribe to this gallows humor.

*Originally published in Minnesota Lawyer