University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 1996 The “Midnight Assassination Law” and Minnesota’s Anti-Death Penalty Movement John Bessler University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Constitutional Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation The “Midnight Assassination Law” and Minnesota’s Anti-Death Penalty Movement, 1849-1911, 22 Wm. Mitchell L. Rev. 577 (1996) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. The "Midnight Assassination Law" and Minnesota's Anti-Death Penalty Movement, 1849-1911 John D. Bessler reprinted from WILLIAM MITCHELL LAW REVIEW VOLUME 22, NO.2 (1996) Electronic copy available at: http://ssrn.com/abstract=1758923 THE "MIDNIGHT ASSASSINATION LAW" AND MINNESOTA'S ANTI-DEATH PENALlY MOVEMENT, 1849-1911t John D. Besslertt I. INTRODUCTION........................... 578 II. THE MINNESOTA TERRITORY AND THE EARLy STATEHOOD YEARS, 1849-1867 . .. 583 A. A Public Execution on the Prairie ............ 583 B. Lynch Mobs and Frontier justice . .. 586 C. Early Abolitionist Efforts and the Execution of Anne Bilansky . .. 589 D. More Public Hangings. .. 599 III. THE EXECUTION MORATORIUM, 1868-1884 . .. 603 A. The 1868 Act ......................... 603 B. The Repeal of the 1868 Act ................ 608 Iv. THE RESUMPTION OF HANGINGS IN MINNESOTA, 1885-1889 .............................. 614 A. Daytime Executions. .. 614 B. The Barrett Boys and the Beginning of the 1889 Legislative Session ...................... 616 V. THE PASSAGE OF THE "MIDNIGHT AssAssINATION LAw" IN 1889 . .. 619 A. Abolitionist Efforts in 1889 ................ 619 B. The john Day Smith Law. .. 624 t © Copyright 1995 by John D. Bessler. All rights reserved. tt Attorney, Leonard, Street & Deinard, MinneapOlis, Minnesota; J.D. 1991, Indiana University School of Law at Bloomington; BA 1988, University of Minnesota at Minneapolis. The author extends special thanks to Bruce Beddow, Gregory Gisvold and Michael Handberg for their cooperation in making materials available for use in this Article. The author also thanks the staff of the Minnesota Historical Society and the librarians at the Minnesota State Law Library and the University of Minnesota Law School for their indispensable research assistance. A portion of this article will appear in the author's forthcoming book, tentatively entitled Death in the Dark: Midnight Executions and Capital Punishment in America, to be published by University Press. 577 578 WIUJAM MITCHELL LAW REVIEW [Vol. 22 VI. THE "MIDNIGHT AssAssINATION LAW" IN OPERATION, 1889-1905 ............................. 629 A. The First Five Hangings ................. 629 B. The U.S. Supreme Court Ruling in Holden .... 643 C. Non-Compliance, Non-Enforcement .......... 648 VII. A LEGAL CHALLENGE TO THE "MIDNIGHT AssAssINATION LAw," 1906-1907 ............. 659 A. The Hanging of William Williams . .......... 659 B. The Gubernatorial Investigation ............ 665 C. Three Newspapers Indicted . 666 D. The District Court Ruling ................ 671 E. The Minnesota Supreme Court Case . ......... 673 VIII. THE ABOLITION OF CAPITAL PUNISHMENT ..•..•. 677 A. Abolitionist Efforts from 1891 to 1910 . 677 B. The 1911 Legislative Session .............. 690 IX. CONCLUSION .••.................••...... 699 X. POSTSCRIPT: THE DARK LEGACY OF MINNESOTA'S "MIDNIGHT AssAssINATION LAW" ............. 701 APPENDIX .•.•..........•.•.•.......••..• 718 I. INTRODUCTION In the United States, executions are hidden from public view. State laws, in fact, require that executions take place within prisons, and most states limit public attendance at executions to only six to twelve "reputable" or "respectable citizens."l Television coverage is not allowed.2 The death 1. ARIz. REv. STAT. ANN. § 13-705 (Supp. 1994) (asserting that a superintendent shall invite "at least tWelve reputable citizens of his selection"); ARK. CODE ANN. § 16-90- 502(d)(2) (Michie 1987) ("At the execution there shall be present ... a number of respectable citizens numbering not fewer than six (6) nor more than twelve (12)."); MD. CODE ANN., art. 27, § 73 (1957) (stating that executions shall take place in the presence of "a number of respectable citizens numbering not less than six or more than twelve"); Mo. ANN. STAT. § 546.740 (Vernon 1987 & Supp. 1992) (requiring that the chief administrative officer of the correctional facility invite "at least twelve reputable citizens, to be selected by him"); NEV. REv. STAT. § 176.355(2) (d) (1991) (allowing the director of the department of prisons to invite "not less than six nor more than nine reputable citizens"); N.H. REv. STAT. ANN. § 630:6 (1986) (stating that "the sheriff of the county in which the person was convicted ... may admit other reputable citizens not exceeding 12 ...."); N.M. STAT. ANN. § 31-14-15 (Michie 1984) (warden must invite "at least twelve reputable citizens, to be selected by him"); N.C. GEN. STAT. § 15-190 (1983) ("At such execution there shall be present ... six respectable citizens ...."); PA. CONS. STAT. ANN. § 9711 (k)(l) (Supp. 1995) ("No person except the following shall witness any execution ... six reputable adult citizens selected by such superintendent. ..."); S.C. 1996] THE -MIDNIGHT ASSASSINATION LAW" 579 penalty is cloaked in added secrecy because executions usually occur at night. Many states even mandate, by statute, that executions take place after midnight and before dawn. For example, Delaware and Louisiana authorize executions only between midnight and 3:00 A.M., and South Dakota's executions must occur between 12:01 A.M. and 6:00 A.M.lI Other states, like Wyoming and Indiana, require executions "before the hour of sunrise."4 In fact,one of the most popular times to schedule an execution is one minute after midnight, with over eighty-two percent of all executions from 1977 to 1995 occurring between the hours of 11:00 P.M. and 7:30 A.M. Only rarely do executions occur during daylight hours.5 Minnesota no longer authorizes capital punishment, but the state once played a pivotal role in shaping the way in which states conduct executions in America. Indeed, while other states acted first in passing laws requiring private, nighttime execu- CODE ANN. § 24-3-550 (Law. Co-op. Supp. 1995) ("At an execution ... a group of not more than two respectable citizens of the State designated by the director ... must be present. ft); see also COLO. REv. STAT. § 16-11-404 (1986) ("There shall ... be present ... such guards, attendants, and other persons as the executive director . deems desirable, not to exceed fifteen persons. ft). 2. MISS. CODE ANN. § 99-19-55(2) (1972) ("No person shall be allowed to take photographs or other recordings of any type during the execution."); TENN. CODE ANN. § 4O-23-116(c)(l) (Supp. 1995) ("Photographic or recording equipment shall not be permitted at the execution site until the execution is completed, the body is removed, and the site has been restored to an orderly condition.ft ); UTAH CODE ANN. § 77-19- 11 (5)(a) (1995) ("Photographic or recording equipment is not permitted at the execution site until the execution is completed, the body is removed, and the site has been restored to an orderly condition.ft ). 3. DEL. CODE ANN. tit. II, § 4209(0 (Supp. 1994); LA. REv. STAT. ANN. § 15:569.1 (West 1992); S.D. CODIFIED LAws ANN. § 23A-27A-17 (1988). 4. IND. CODE ANN. § 35-38-6-1 (b) (West 1986); KEN. REv. STAT. § 431.240(1) (Michie Supp. 1995) (requiring executions to take place "before sunriseft ); WYo. STAT. § 7-13-905(a) (1995) (requiring executions "before the hour of sunriseft ). Until 1995, Texas also required executions to take place "before sunrise. ft In 1995, the Texas Legislature passed a law requiring lethal injections to occur after 6:00 P.M. TEx. CRiM. PROC. CODE ANN. art. 43.14 (West 1996) (requiring that "the sentence shall be executed any time after the hour of 6 p.m. on the day set for the execution."). This change in the timing of executions was meant to accommodate the schedules of lawyers and judges, who are more accessible during the day. Bruce Tomaso, lOOth Inmate Executed, DALLAS MORNING NEWS, Oct. 5, 1995, at 27A; Texas Murderer Dies I1y Lethal Injection, BALTIMORE SUN, Oct. 5, 1995, at 6A. Some states allow correctional officials to set the hour of execution. UTAH CODE ANN. § 77-19-6(2) (1995) ("The Department of Corrections shall determine the hour, within the appointed day, at which the judgment is to be executed.ft ). 5. See infra Appendix (listing the hour and minute that executions took place in the United States from 1977 to 1995). 580 Wll.LIAM MITCHEll LAW REVIEW [Vol. 22 tions,6 Minnesota's so-called "midnight assassination law" is the only American law requiring private, nighttime executions ever commented upon by the United States Supreme Court.' That fact alone makes the study of Minnesota's "midnight assassina­ tion law" important. However, an examination of Minnesota history also provides a fascinating microcosm of the paternalistic sentiment that led to the rise of laws requiring private, nighttime executions in America. For example, in its quest to protect "the masses" from gruesome execution spectacles, Minnesota adopted the "midnight assassination law,"8 which, like laws enacted in New York and Colorado, went so far as to make it a crime for newspapers to print any execution details.9 By exposing the 6. Many states enacted laws requiring private executions before the Minnesota Legislature passed its private execution law in 1889. For example, Pennsylvania abolished public executions in 1834, as did Massachusetts, New Jersey and New York in 1835. LoUIS P. MAsUR, RITES OF EXECUTION: CAPITAL PUNISHMENT AND THE TRANSFORMATION OF AMERICAN CULTURE, 1776-186593-94 (1989); see also iii.