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Minnesota’s John Day Smith Lawand the Death Penalty Debate

MICHAEL ANDERSON

In 2001 the editors of MinnesotaHistory named Michael Anderson

the winner of the magazine’spublication award for the best

senior-division History Day paperon a Minnesota topic. The award

includes a $50 prize, the opportunityto be part of the editorial process,

and publication in MinnesotaHistory. Anderson, then a tenthgrader at White Bear Lake Area

High School, selected his topic to fitthe 2001 History Day theme of

“Frontiers in History: People,Places, Ideas.”

History Day, a popular andhighly regarded academic

challenge—more than 700,000students participated nationwide in

2001—is the fastest-growing socialstudies enrichment program inMinnesota. Its goal is to engage

students and teachers in theexcitement of historical inquiry

and creative presentation. Wehope that Anderson’s article will

interest all readers and inspirefuture History Day participants.

On December 29, 1854, Uhazy, a Dakota Indian, was hangedin St. Paul for killing a white woman. An inebriated and boisterous crowdlooked on.

Liquor was openly passed through the crowd, and the last moments of

the poor Indian were disturbed by bacchanalian yells and cries. Remarks

too heartless and depraved . . . were freely bandied by persons . . . carrying

with them the instincts of brutes and the passions of ruffians. A half

drunken father could be seen holding in his arms a child, eager to see

well; giddy, senseless girls and women chattered gaily with their atten-

dants, and old women were seen vieing [sic] with drunken ruffians for a

place near the gallows.

According to a reporter for the Daily Minnesotian, “Total Depravitywas out early. . . . In fact, Total Depravity appeared not to have gone tobed at all,” as firearms had been discharged near Uhazy’s jail throughoutthe night.1

Public, daytime hangings were the rule for capital offenders in theterritorial and early statehood days of Minnesota. However, communityleaders came to realize that crowds attended executions primarily fortheir entertainment value, with the consumption of alcohol and ensuingviolent acts a common occurrence. In 1889 the Minnesota legislaturepassed the John Day Smith law, frequently called the “midnight assassi-nation law,” that required the private, nighttime execution of prisonersfacing a death sentence. Although Minnesota today no longer has capitalpunishment, the John Day Smith law opened a new frontier in the public-policy debate over capital punishment. It also led to the passage of similarlaws in other states that are still in effect today.

Before states passed these laws, public executions were a “fixture ofAmerican society,” according to law professor John D. Bessler. They weresupposed to serve two purposes: civil and religious. As a civil “ceremony,”public execution was supposed to deter crime by demonstrating the au -thor ity of the state to punish those who violated the law. As a religiousceremony, it was supposed to demonstrate the danger of sin and providereligious leaders with the opportunity to urge attendees to repent. Com -monly, the condemned would be led from jail to a nearby church for areligious service. From the church there would be a procession to the

State Representative John Day Smith in 1889, the year that his bill became law, and the new Victorian Gothic state capitolwhere the legislature met, Tenth and Wabasha Streets, St. Paul

86 Minnesota History

execution site, usually a public square.At the gallows, the sheriff wouldread the death warrant and a capwould be pulled over the prisoner’shead before the trapdoor droppedopen. Executions usually occurred inthe afternoon. According to Bessler,“Literally thousands of people—including ‘entertainers, vendors,pick-pockets, promoters, evangelists,sight-seers, peddlers and medicine

men’ turned out at public hangings.”Minnesota, however, appears to havetaken a less elaborate approach, usu-ally staging the execution in the jailcourtyard during the day, followinga short prayer service at the gallows.2

Although intended to teach im -portant lessons, public executionsoften had unanticipated conse-quences. Instead of deterring crime,Bessler shows, they at times seemed

to encourage it. For example, afterthe 1822 execution of John Lechlerin Lancaster, Pennsylvania, 15 peo-ple were arrested, including a manwho stabbed and killed another in a“drunken brawl at a tavern afterboth men had just watched Lechlerhang.” In 1836 in Ohio, shortly afterthe execution of a man for the mur-der of his wife, “another man, nearthe place of execution, murdered his

wife in the same manner.” In 1894 aKansas City resident was hanged forkilling his wife, and “five years later,his son was hanged from the samegallows for killing his girlfriend.”3

Following the 1854 hanging of Uhazy, public executionsin Minnesota primarily took theform of extralegal mob lynchings.For example, in 1858 an unruly mob

strung up Charles J. Rinehart, theprime suspect in the murder of a 36-year-old carpenter named John B.Bodell. Rinehart had been kept in ajail in Lexington, Minnesota, freshlybuilt just for him. After about amonth and a half, a mob of 60 mensurrounded the jail, overpowered theguard, and prepared to take justiceinto their own hands. Rinehartwrenched the cuffs and several lay-ers of skin off his hands, tore theclamp that held his leg irons out ofthe floor, broke off one of the ironstove legs, and used it to defendhimself from the mob for an hourand a half. In the end, however,Rinehart fainted, was dragged fromhis cell, and was lynched on the limbof a tree. On April 25, 1859, anarmed mob lynched Oscar F. Jack -son in Wright County after he hadbeen acquitted of first-degree mur-der. Governor Henry H. Sibley,Minnesota’s first governor after thestate was admitted to the Union onMay 11, 1858, declared that these“deeds of violence must cease.” Notlong after Sibley took office, thenotorious Ann Bilansky affair “seizedfirst place in the public’s interest.”4

Ann Bilansky was the first personto be legally executed after Minne -sota became a state. She was also thefirst (and to date, the only) womanto be executed in Minnesota. Bilan -sky was convicted of poisoning herhusband, the Pioneer and Democratreported, so that “she might marryor have more unrestrained inter-course with her paramour.” Onappeal, her conviction was affirmedby the Minnesota Supreme Court.Despite many petitions on herbehalf, including a letter from her

St. Paul jail, 1851–57, which was “about as secure as pasteboard,” according tochronicler J. Fletcher Williams

prosecutor, who had come to ques-tion the fairness of the trial, then-Governor Alexander Ramsey refusedto commate her sentence. Bilanskywas executed on March 23, 1860.Before being led to the gallows, shepleaded, “I am willing to meet myGod, but I don’t want to have acrowd see me die.” Her request wasnot met, though. About 100 peopleawaited her arrival at the scaffold,and some 25 to 30 women latersqueezed into the enclosure thathad been erected at the courthouse.Furthermore, the gallows platformwas tall enough that the heads ofthose involved in the execution couldbe seen above the new fence, andanyone who took the trouble toclimb onto a roof or a wagon had aclear view of the hanging.5

The Bilansky execution was fol-lowed by more, such as the hangingof Henry Kriegler in Albert Leabefore a large crowd on March 1,1861; the December 26, 1862, hang-ings of 38 Dakota Indians in Man -kato on a gallows that held ten pris-oners on each side; the hanging ofJohn Waisenen in Duluth on August28, 1885, before a crowd that saw hishands turn purple; and the doublehanging of Peter and Timothy Bar -rett in Minneapolis on March 22,1889. Although the Barretts werehanged inside the Hennepin Countyjail, their execution was hardly pri-vate. The local sheriff sent invitationsto more than 100 to view the event.In addition, about 5,000 peoplewaited outside and about 2,000 werelater allowed to see the gallows.6

The Barrett executions,together with the “broadcast” of “thesickening details” of the event, ledreformers to introduce bills againstcapital punishment in the state leg-islature. Ten days after the Barretthangings, a bill for complete aboli-tion of the death penalty, sponsoredby Representative Charles R. Davisof St. Peter and previously “indefin -itely postponed,” was resurrectedand debated. The details of thehang ings led Representative FrankE. Searle of St. Cloud, who had pre-viously favored the death penalty, tochange his views. RepresentativesJohn Day Smith and Eugene G. Hay,both of Minneapolis, also supportedthe bill. Nevertheless, it still metfierce opposition and again wasindefinitely postponed—only thistime by a close vote.7

As a compromise between keep-ing capital punishment and eradi-cating it, Representative Smithintroduced a bill on March 29, 1889,to outlaw public executions. In thefinal version of his bill, executionswere to occur “before the hour ofsunrise” and “within the walls of thejail” or within an enclosure tallerthan the gallows. The bill also re -quired that the prisoner be kept insolitary confinement after being con-demned to die, with a limited num-ber of visitors permitted. The onlypeople allowed to be present at anexecution were the sheriff and hisassistants, a clergyman or priest, aphysician, three persons chosen bythe prisoner, and a maximum of sixothers designated by the sheriff.

Detailed coverage of the sensational Bilansky case and execution,Daily Pioneer and Democrat, March 24, 1860

88 Minnesota History

Finally, the bill forbade newspapersto print an account of the executionbeyond the fact that it had happened.Violations of the law were to be pun-ishable as misdemeanors. The billwas passed by nearly unanimousvotes in both the House and theSenate, signed by the governor, andtook effect on April 24, 1889. Repre -sentative Smith said the law was“intended to promote morality.”He said that it was “degrading to hu -man ity to witness executions the waythey are sometimes conducted in thecountry.” In short, the bill wasdesigned to protect the masses fromthe unwholesome effects of publicexecutions. Angry newspaper editors,however, called it the “midnightassassination law.”8

The nighttime executionsthat immediately followed the pas-sage of the bill—Albert Bulow inLittle Falls and Thomas Brown inMoorhead in 1889, William Brookerin Pine City in 1890, William Rosein Redwood Falls, and AdelbertGoheen in Fergus Falls in 1891—aroused little public complaint.However, newspapers, including theSt. Paul Dispatch and BrainerdJournal, harshly criticized the so-called midnight assassination law forfailing to accomplish its purposesand resulting in misleading and evenfalse accounts of the executions.Editors around the state also contin-ued to publish stories about the exe-cutions without penalty.9

Gory details from the St. Paul Dispatch,February 13, 1906, published in violation of the John Day Smith law

Summer 2002 89

Ironically, it was the publicationof details about a botched hanging,in violation of the John Day Smithlaw, that brought an end to capitalpunishment in Minnesota. On Feb -ruary 13, 1906, at 12:31 a.m., WilliamWilliams was hanged for the murderof Johnny Keller, but the rope wassix inches too long and Williams hitthe floor below the gallows’ trap-door. He was still alive because hisneck did not break in the fall. Threedeputies then grabbed the rope and

St. Paul Pioneer Press, St. PaulDispatch, and St. Paul Daily News—were criminally indicted. Althoughthe papers were found guilty of themisdemeanor and fined $25.00 each,the newspaper accounts ensured thatWilliams was the last person to beexecuted in Minnesota. Public out-rage caused governors to commuteall subsequent death-penalty sen-tences until capital punishment wasabolished five years later, in 1911, bythe Minnesota legislature.11

Governor Adolph Eberhart and the 1911 legislature that outlawed capital punishment in Minnesota

held Williams off the floor as hechoked to death. “After waiting 14½

minutes after the drop, Coroner A.W. Miller, Dr. J. Ohage, Dr. GeorgeMoore and Dr. Charles A. Wheatonstepped to the hanging figure andafter a short examination pronouncedthe man dead,” the Pioneer Pressreported.10

Despite the publishing ban, localnewspapers reported graphic storiesof the botched execution. This time,the newspapers that did so—the

90 Minnesota History

By the time the 1911legislative session convened, thecriminal-justice system’s view ofincarceration had shifted to focus onreform, with punishment taking on asecondary role. This inclination wasfueled by mounting evidence thatcapital punishment did not detercrime and by the firm belief thatthere would be more convictions forfirst-degree murder if capital pun-ishment were abolished. The generalconsensus was that juries were lessinclined to convict defendants offirst-degree murder, either out ofconscience or out of fear of the bar-barity of the punishment. Conse -quently, when a bill was introducedby Representative George A. Mac -Kenzie of Sibley County to abolishcapital punishment, it passed in theHouse by a vote of 95 to 19. The billencountered some delay in the Sen -ate but ultimately passed, 35 to 19.12

Although most other states didnot follow Minnesota’s lead in abol-ishing capital punishment, many didenact laws mandating private night-time execution primarily because ofthe outcome of two court cases thatoriginated in Minnesota. In Holdenv. Minnesota (1890), condemnedmurderer Clifton Holden’s attorneyargued before the U.S. SupremeCourt that the John Day Smith lawwas an unconstitutional ex post factolaw, as its provisions contradictedthe law in effect at the time of Hol -den’s crime. In affirming Holden’sconviction on December 8, 1890, thehigh court stated that laws requiringprivate, nighttime executions were“regulations which the Legislature,in its wisdom, and for the publicgood, could legally prescribe” and

were constitutional. In State v. Pio -neer Press Co., decided on February21, 1907, the St. Paul Pioneer Press,which had been indicted for publish-ing accounts of the Williams hang-ing, also challenged the constitution-ality of the John Day Smith law. TheMinnesota Supreme Court upheldthe law, stating, “The evident pur-pose of the act was to surround theexecution of criminals with as muchsecrecy as possible, in order to avoidexciting an unwholesome effect onthe public mind.” Holden and Pio -neer Press essentially showed thatrestricting newspaper coverage ofpublic executions for the publicgood was not unconstitutional and,accord ing to Bessler, “signaled to thenation’s lawmakers that laws requir-ing private, nighttime executionswere constitutionally permissible.”13

The Holden and PioneerPress cases led to the proliferation oflaws similar to Minnesota’s JohnDay Smith law in other states. Forexample, in 1893 Connecticut enact-ed a law that required executions tobe performed before sunrise andwithin the walls of the state prison.Other states soon followed with lawscontaining some or all of Minne -sota’s provisions: Massachusetts in1898, North Dakota in 1903, Vir -ginia in 1908, Washington in 1909,Alabama and Texas in 1923, Louisi -ana in 1952, and Delaware in 1994.Today, all 38 states that have capitalpunishment conduct executions inprivate. Although journalists havelimited access, television camerasare forbidden.14

In addition to protecting themasses from excesses associated

with public executions and shapingthe private manner in which execu-tions are performed today, the JohnDay Smith law is believed to haveaffected the debate on the continueduse of the death penalty in theUnited States. All other industrial-ized democracies in the world exceptJapan have abandoned capital pun-ishment. Serious questions exist asto the fairness of the death penaltyand its application, particularly tominority and indigent defendants.Yet executions occur behind prisonwalls in the middle of the night andtelevision cameras are banned, sopeople must rely on “second-handaccounts . . . from newspapers andmagazines to form an opinion aboutthe propriety of capital punishment,”Bessler argues. By “sanitizing” newsaccounts for the purpose of protect-ing the masses, the midnight assassi-nation laws “have literally blindedAmericans to the reality of whathappens behind prison walls.”15

Public debate over the evolutionof government-sponsored executionsfrom publicly viewed events toclosed proceedings came to the fore-front with the execution of TimothyMcVeigh on June 11, 2001. McVeighwas convicted of masterminding andcarrying out the bombing of anOkla homa City government buildingin which 168 persons were killed.The execution was a significant,newsworthy event not only becauseof the severity of McVeigh’s crimebut also because it was the first exe-cution to be carried out by the feder-al government since 1963. AlthoughAttorney General John Ashcroftauthorized the use of closed-circuittelevision so that the execution could

Summer 2002 91

be viewed by family members of thevictims, the execution site was closedto the general public, and no record-ing of the event was retained. Theruling by a federal judge denying therequest of a company seeking towebcast the execution makes itunlikely that the public will ever bepermitted to view an execution.16

The 1889 John Day Smith law opened a new frontier in the de -bate as to how government-sponsoredexecutions should be conducted.

The “midnight assassination” lawwas meant to promote morality, andit did protect the public from theunwholesome and sometimes violenteffects of public executions. Min ne -sota abandoned capital punishmentin 1911, removing the need for thelandmark legislation, but not beforetwo Supreme Court cases affirmingthe law paved the way for similarlaws in other states. This moved thesite of state-sponsored executionsfrom public squares to secludedprison chambers. However, in the

present day, when problems inapply ing death-penalty laws raisequestions about the fairness of capi-tal punishment, the limitations onmedia coverage imposed by the JohnDay Smith law may have had a nega-tive effect on honest public debateabout the grisly reality of the deathpenalty. As news commentator TedKoppel stated in 1995, “If what soci-ety wants is the death penalty, thenlet us at least have the decency to befully conscious of what we are doingand why.”17 ;

Notes

1. Daily Democrat (St. Paul), Dec. 29,1854, p. 2; Daily Minnesotian (St. Paul),Dec. 30, 1854, p. 2; John D. Bessler, Deathin the Dark: Midnight Executions in Amer -i ca (Boston: Northeastern University Press,1997), 30–31; Jane Lamm Carroll, “NativeAmericans and Criminal Justice on theMinnesota Frontier,” Minnesota History 55(Summer 1996): 52–54.

2. Bessler, Death in the Dark, 23, 25–26,27–28; Walter N. Trenerry, Murder inMinnesota (St. Paul: Minnesota HistoricalSociety Press, 1985), 40.

3. Bessler, Death in the Dark, 23, 28–29. 4. John D. Bessler, “‘The Midnight

Assassination Law’ and Minnesota’s Anti-Death Penalty Movement, 1849–1911,”William Mitchell Law Review 22 (1996):586–87; Trenerry, Murder in Minnesota,3–10, 13–19, 25.

5. Bessler, “Midnight AssassinationLaw,” 596–98; Matthew Cecil, “Justice inHeaven: The Trial of Ann Bilansky,” Min -nesota History 55 (Winter 1997–98): 351,361–63; Daily Pioneer and Democrat (St.Paul), Mar. 24, 1860, p. 3; State of Minne -sota v. Ann Bilansky, 3 Minn. 246 (1859);Trenerry, Murder in Minnesota, 219.

6. Bessler, “Midnight AssassinationLaw,” 600–01, 618–19; Trenerry, Murderin Minnesota, 219–21.

7. Bessler, “Midnight Assassination Law,”622–24, quoting the St. Paul Pioneer Press.

8. Bessler, “Midnight AssassinationLaw,” 581, 624–27.

9. Bessler, “Midnight AssassinationLaw,” 629–32, 635, 637, 641–42.

10. St. Paul Dispatch, Feb. 13, 1906, p.

3; Trenerry, Murder in Minnesota, 163;Daily Pioneer Press, Feb. 13, 1906, p. 1.

11. Trenerry, Murder in Minnesota,164–67.

12. Bessler, “Midnight AssassinationLaw,” 690–92, 695–96.

13. Bessler, Death in the Dark, 56–59;Bessler, “Midnight Assassination Law,”702; Holden v. Minnesota, 137 U.S. 483(1890); State v. Pioneer Press Co., 100Minn. 173 (1907), 175.

14. Bessler, “Midnight AssassinationLaw,” 702–03.

15. Stephen C. Thaman, “Is America aSystematic Violator of Human Rights in theAdministration of Criminal Justice?” SaintLouis University Law Journal 44 (Summer2000): 1000; Stephen B. Bright, “Discrimi -nation, Death and Denial: The Tolerance of

Racial Discrimination in Inflic tion of theDeath Penalty,” Santa Clara Law Review 35(1995): 433–35; Bess ler, “Midnight Assas -sination Law,” 703–04.

16. “The Execution of Timothy McVeigh,”www.cnn.com/specials/2001/okc/; NewYork Times, Apr. 12, 2001, A27; Carl S.Kaplan, “Request to Webcast McVeighExecution is Denied,” New York TimesCyber Law Journal, Apr. 20, 2001.

17. Koppel, quoted in Bessler, Death inthe Dark, 195.

All images are from MHS collections. Thejail description is from Williams, A Historyof the City of Saint Paul to 1875 (1876;reprint, St. Paul: Minnesota HistoricalSociety Press, 1983), 281.

Scaffold inside the Hennepin County jail, 1895

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