State Bar of Wisconsin

Wisconsin's Legal History: Part IV

A Brief History of Wisconsin's Death Penalty

by Alexander T. Pendleton & Blaine R. Renfert

The last execution under Wisconsin law occurred over 150 years ago. The year 2003 is the 150^th anniversary of the end of Wisconsin death penalty. This article traces the use of capital punishment in Wisconsin prior to statehood, outlines the Wisconsin movement for the death penalty's abolition and discusses the McCaffary murder case - a case that played a key role in that movement.

THE DEATH PENALTY IN WISCONSIN PRIOR TO STATEHOOD

The reports regarding the number of executions that took place in Wisconsin prior to statehood are somewhat inconsistent. During the time that Wisconsin was part of the Michigan Territory (1818-1836), several homicide cases were tried, several executions took place, and one defendant, although sentenced to death, was pardoned before execution by President John Quincy Adams. During the time that Wisconsin was a separate territory (1836-1848), at least seven persons were sentenced to death in Wisconsin and at least five of those sentences were carried out. At least some of these cases were not prosecuted under territorial law, however, but were instead the product of military or Indian law.¹

THE EARLY MOVEMENT TO ABOLISH THE PENALTY IN OTHER STATES

Wisconsin reformers who led the fight for death penalty abolition were influenced by the reform movements that began developing in the East shortly after the Revolutionary War. The death penalty had been an accepted part of colonial law, but with the coming of independence and the drafting of new penal codes, reformers sought a change in the status quo.

Although unable to get the penalty abolished, reformers in the East in the late 18th and early 19th centuries were able to convince some state legislatures to establish different degrees of homicide (which enabled juries to convict without condemning). Some legislatures also reduced the number of crimes punishable by death, and prohibited the penalty's public display.²

By 1845, a national association for the abolition of the death penalty had been organized. Its first president was George M. Dallas, the then Vice-President of the United States. The movement's first real success was in Michigan where in 1847 the death penalty was legislatively abolished for all crimes except treason.³

THE PRE-STATEHOOD MOVEMENT TO ABOLISH

After the death penalty was included in Wisconsin's first territorial statutes (1838), efforts immediately began to remove it. A bill to abolish the death penalty did pass the Territorial Assembly in 1847, but it failed to pass in the Senate.⁴

At the first Wisconsin Constitutional Convention of 1846, several prominent delegates sought the adoption of an article prohibiting capital punishment. The issue of the death penalty was extensively debated. Those speaking in favor of a proposed constitutional provision prohibiting the death penalty argued: (1) The death penalty is a relic of a barbarous age; (2) Juries often refuse to convict otherwise guilty persons when the penalty is death; (3) Public executions "harden" those who witness them, thus making them more susceptible to committing crimes; (4) Since juries are frequently unwilling to convict, or even indict, when the penalty is death, certain elements of the population are more likely to resort to lynching to ensure punishment; (5) The punishment falls disproportionately on the poor; (6) The Bible does not require the death penalty (example given: Cain was exiled, not executed, for the murder of Abel); and (7) A majority of people in Wisconsin supported abolition.⁵

Those speaking at the convention in opposition to the proposal to constitutionally abolish the death penalty argued: (1) Only the death penalty is sufficiently punitive to deter murder in that criminals do not fear prison; (2) No Wisconsin penitentiary exists (and "there was not one jail in any county in the territory at this time which an ingenious and artful prisoner could not walk through in twenty-four hours"); (3) If the death penalty were abolished, there would exist no deterrent to prevent prisoners sentenced to life imprisonment from killing prison guards; (4) The death penalty was universally accepted by other states and governments; (5) If the proposal was included in the Constitution it might make ratification of the Constitution by the people more difficult; (6) This issue was better left to the legislature; and (7) The Bible accepts as proper and mandates the death penalty for murder (examples cited: God condemned Adam, Eve and all their descendants to death for the crime of eating the fruit of the Tree of Knowledge; God executed all persons save one family with the flood; God told Noah "Who so sheddeth a man's blood, by man shall his blood be shed").⁶

If the constitutional proposal had passed, Wisconsin would have been the first state to have such a constitutional provision, and the first state to have completely abolished the death penalty. Although the proposal had a good deal of support among the delegates, and although the issue was extensively debated in the Territory's newspapers, the proposal was narrowly defeated.⁷

THE McCAFFARY CASE

John McCaffary's execution on August 21, 1851 was the last execution to be carried out under Wisconsin law. McCaffary's trial and execution played a key role in the campaign that ultimately succeeded in completely abolishing the death penalty in Wisconsin.

The facts of McCaffary's crime are as follows: Around midnight on Tuesday, July 23, 1850, the neighbors of John and Bridget McCaffary were awakened by Bridget McCaffary's screams. The neighbors heard Bridget yell "John, spare me," and "John, save me," and rushed to the McCaffarys' backyard. In the corner of the yard a very large barrel, which served as a shallow well, was sunk in the ground. John McCaffary was seen climbing out of the barrel, wet and covered with mud. As he headed toward his house, a neighbor stopped him and asked if he had put his wife in the well; McCaffary replied that someone was in the well. McCaffary returned to the barrel with another neighbor and told him there was nothing in the well but a shirt. The neighbor reached into the barrel and found the body of Bridget McCaffary. The body was pulled from the well and a physician pronounced her dead by drowning. McCaffary was arrested and placed in the Racine County Jail.⁸

John McCaffary's trial commenced on May 6, 1851 before Judge E. V. Whiton.⁹ It was the first murder trial, in fact the first major trial of any kind, to be held in Kenosha. The trial lasted ten days. The prosecution called 13 witnesses who testified as to the events on the night of July 23rd, and to the cause of Bridget McCaffary's death.

After the prosecution rested, the defense called several character witnesses on McCaffary's behalf. McCaffary himself did not take the stand. The jury returned a verdict of "Guilty of Willful Murder."¹⁰ Judge Whiton's sentencing of McCaffary was recorded by a Kenosha attorney and published in a local paper (see The Sentencing and Execution of John McCaffary). No other pronouncement of execution by a Wisconsin judge is known to still be in existence.

THE CAMPAIGN TO ABOLISH THE DEATH PENALTY AFTER McCAFFARY'S EXECUTION

Despite the failure of reformers to include a ban on the death penalty in Wisconsin's first constitution, the lack of such a ban did not lead to a wave of executions. The McCaffary execution was the first execution under Wisconsin law after statehood.¹¹ His death revived the abolition campaign and led to a significant number of editorials in Wisconsin newspapers against the death penalty. Perhaps the most eloquent was by the editor, inventor, legislator and eyewitness to McCaffary's execution, C. Latham Sholes:

"The last agony is over. The crowd have been indulged in its insane passion for the sight of a judicially murdered man. McCaffary murdered his wife without the sanction of the Law, and McCaffary has been murdered according to law. - We do not complain that the law has been enforced. We complain that the law exists. The prisoner we know received from the law all the mercy and lenity that the law and its faithful execution could give. . . . We hope this will be the last execution that shall ever disgrace the mercy-expecting citizens of the State of Wisconsin."¹²

Wisconsin opponents of the death penalty were assisted by the absolute nature of Wisconsin's willful murder law: the only sentence a judge could impose on one convicted of willful murder was death.¹³ Abolitionists argued that this caused juries to refuse to convict otherwise guilty murderers. The result of the widely reported William Radcliffe trial in Milwaukee in 1852 was often cited in support of this argument.

Radcliffe was tried in Milwaukee in 1852 for the murder of David Ross. The police had a great deal of evidence against Radcliffe: He had been seen drinking with Ross the night of the murder, boot prints at the scene of the murder matched his boots, there was blood on his boots when he was arrested the morning after the murder, and the murder wound - a triangular shaped gash to the skull - was consistent with an oddly shaped hammer which Radcliffe had stolen shortly before the murder. Yet despite all of this evidence, Radcliffe was not convicted. It was reported that the jury did not convict at least partly as a result of at least one juror's strong opposition to the death penalty.¹⁴

In addition to the Radcliffe trial in Milwaukee, there were two trials in Waukesha County in the early 1850's in which defendants were not convicted of willful murder reportedly due to anti-capital punishment sentiment.¹⁵ Opponents of the death penalty were also assisted by the fact that by 1852 construction of Wisconsin's first penitentiary (Waupun) was nearing completion.¹⁶ A secure state prison made life imprisonment a feasible alternative.

Petitions for the repeal of the death penalty were submitted to the Legislature in January, 1852 (the first session after McCaffary's execution) but little progress was made until 1853. The battle for repeal was led in the Senate by Marvin H. Bovee (D. Waukesha), and in the Assembly by C. Latham Sholes (R. Kenosha).¹⁷ On March 9, 1853, the Assembly passed the Death Penalty Repeal Act by a vote of 36 to 28. The Senate concurred, 14 to 9, on July 8th. The law was finally signed into law by Governor Farwell on July 10, 1853.

THE DEATH PENALTY ISSUE IN WISCONSIN SINCE 1853

The abolition of the death penalty has not always been popular with the public. On three occasions in the years 1854-55, Wisconsin mobs lynched murder defendants, one of whom had been convicted and sentenced to life in prison. Such lynching reportedly led a large majority of Wisconsin newspapers by 1856 to favor the re-establishment of the death penalty.¹⁸

Legislators have at various times introduced legislation supporting the re-establishment of the death penalty for certain crimes. For example, in 1857 a bill was introduced to repeal the abolition of 1853. In 1866, Wisconsin supporters of the execution of Confederate President Jefferson Davis sought increased support by sponsoring a bill to re-establish the death penalty in Wisconsin.¹⁹

In 1937, not long after the Lindbergh kidnapping, a bill was proposed establishing kidnapping as a capital offense. Bills making first degree murder a capital offense were also introduced in 1949 and 1955. None of these bills obtained any significant degree of support.²⁰

In recent years, several Wisconsin legislators have introduced bills to re-establish the death penalty in Wisconsin. To date, none of the bills have garnered enough support to make it out of committee.

WISCONSIN COMPARED TO OTHER JURISDICTIONS

If Wisconsin had abolished the death penalty in 1848, it would have been the first state to completely abolish the death penalty. As the abolitionists' cause failed at the 1848 constitutional convention, and since it also failed in the 1852 legislative session, Rhode Island now claims that it was the first state to completely abolish the death penalty. After doing so in 1852, however, Rhode Island later restored the death penalty for any life term convict who commits murder.²¹

Wisconsin law has been without the death penalty now for nearly 150 years. Wisconsin has steadfastly maintained this tradition longer than any other state in the nation.²² While claims of first and longest are often risky, and while it may be misleading to compare a sub-national jurisdiction to national jurisdictions, Wisconsin may well have been without the death penalty longer than any presently existing nation. Sources on capital punishment often note that, in the modern era, three jurisdictions in Europe abolished the death penalty prior to Michigan's almost complete (treason being the one exception) abolition of the penalty in 1847. Catherine II of Russia officially abolished the death penalty in 1767, Leopold II of Tuscany did so in 1786 and Joseph II of Austria did so in 1787.²³

The authors believe that all three of these jurisdictions, or their successors, later re-established the death penalty for at least a period of time. It can be difficult to define what is and is not a "nation." The authors suspect there may be some "nation's" laws, be it the Vatican's, the Cherokee Nation's or the Island of Fiji's, that have been without the death penalty longer than Wisconsin's laws. The authors leave this issue to others, but are interested in hearing the results of others' research on this point.

Endnotes

¹ For varying reports of the number of pre-statehood executions and capital trials, see J. Holzhueter, Executions Stained Area's History, Wisconsin Then And Now 2 (June, 1979); C. Cropley, The Case of John McCaffary, Wis. Mag. of Hist., 281 (Summer, 1952); M. Quaife, The Constitution of 1846, 431 (1919); G. Thain, The Early Days of Wisconsin Court, Wis. Law. 14 (Oct. 1990).

² D. Davis, The Movement To Abolish Capital Punishment In America, 1787-1861, 63 Amer. Hist. R. 23, 26-27 (Oct. 1957). Several states made murder the only crime punishable by death (Kentucky in 1800, Ohio in 1824, and New Hampshire in 1842). New York in 1841 limited the death penalty to treason, murder and arson. By contrast, in 1837 in North Carolina there were 22 capital crimes; in Virginia, there were at least 72 crimes for which slaves could be executed, but from which non-slaves were exempt. Id. Maine in 1837 passed a bill under which a death sentence could only be executed after one year had passed since the conviction, and only then after a written warrant of execution was issued at the discretion of the Governor. It was widely believed that by allowing "passions to cool" for a year no governor would issue an execution warrant. This belief proved incorrect. Id. at 33. As has been proven in this century, delay does not inevitably halt the ultimate infliction of the death penalty.

³ See Davis, supra 33-6 and 42; see also J. Bowers, Executions in America 6 (1974). For an excellent general discussion of the intellectual and philosophical currents of the capital punishment debate in America and Europe during the 18th and early 19th Centuries, see Davis, supra at 23-26, 28-32 and 34-41.

⁴ Holzhueter, supra at 6.

⁵ M. Quaife, The Constitution of 1846 337-39, 413-15, 426-30, 546-547 (1919). The liberal Biblical argument was well articulated by a delegate to the 1846 Wisconsin Constitutional Convention in a letter to the Madison Wisconsin Democrat on November 14, 1846. M. Quaife, The Struggle Over Ratification 1846-47 131 (1920).

⁶ Id. at 418-26, 430-39 and 547-48.

⁷ Holzhueter, supra at 6; Quaife, supra at 548.

⁸ The details of the murder are from the Kenosha Telegraph's report of the events on July 26, 1850, at 2. McCaffary was put in the Racine County Jail because Kenosha had not yet constructed one. The arresting officer was the Mayor of Kenosha, Col. Michael Frank. Cropley, supra at 282.

⁹ The defendant was represented by attorneys E. W. Evans and A. G. Chatfield. The prosecution was conducted by Attorney F. S. Lovell, District Attorney J. R. Sharpstein and Attorney General S. Parks Coon. Prior to trial McCaffary's counsel sought a change in venue. The grounds given were that their client could not receive a fair trial in Kenosha as the Irish citizens of Kenosha would be prejudiced against him for being from a different county in Ireland. The motion was denied. Id. A copy of the trial record, such as it is, is in the archives at the University of Wisconsin-Parkside library. The trial record only contains the plaintiff's pre-trial motions, a list of the jury panel, plaintiff's post-trial motions and the court's judgment.

¹⁰ Kenosha Telegraph, May 30, 1851 at 2; Cropley, supra at 282-83.

¹¹ McCaffary's house has been placed on the National Register of Historic Places and still stands today. That the citizens of Kenosha should wish to preserve a murderer's house was seen as sufficiently unusual to earn a mention in the syndicated newspaper comic panel "Ripley's Believe It Or Not." The plaque on the house states that McCaffary was "the first and last man to be executed by the State of Wisconsin." Since statehood, two other persons were executed in Wisconsin, but it is accurate to state that they were not executed by the State of Wisconsin. One person in St. Croix Falls was "tried" for a murder that occurred just prior to statehood. His trial and execution, both of which occurred after statehood, were unorthodox, however, in that the local assembled citizens (who at the time were without any local judicial system) elected a judge, jury, sheriff and attorneys to conduct the quasi-legal trial. At least one newspaper reported the event as a lynching. Holzhueter, supra at 6. The last execution in Wisconsin, as opposed to under Wisconsin law, was on November 13, 1868. The defendant, Jacob Fowles, was tried and executed in 1868 pursuant to Oneida Tribal Law. Holzhueter, supra, at 3.

¹² Kenosha Telegraph, Aug. 21, 1851 at 2.

¹³ Bowman, supra at 80. There was one exception to this: if a person killed another in a duel the penalty was life imprisonment. P. Robbins, Capital Punishment In The States With Special Reference To Wisconsin, Legislative Reference Library, Informational Bulletin 210, at 1 (1962) (available from the Wisconsin Legislative Reference Bureau).

¹⁴ There has been a good deal of historical scholarship regarding several interesting aspects of the Radcliffe trial. For a thorough discussion of the case and the persons involved, see G. Bowman, The Radcliffe Murder Trial, The Hist. Messenger of the Milw. Cty. Hist. Soc. [hereinafter "Messenger"] 29 (June 1966); C. Salmon, How Legal Ethics Saved a Milwaukee Man from the Gallows, Messenger 6 (June 1963); and P. Van Vetchen, Jr., Recollections of the Radcliffe Murder Trial, Messenger 29 (March 1967); see also Western Historical Co. (Chicago), History of Milwaukee, Wisconsin 312-6 (1881); M. Grant, Judge Levi Hubbell: A Man Impeached, Wis. Mag. of Hist. 28 (Autumn 1980); and A. Andreas, History of Milwaukee 314-17 (Chicago 1881). Salmon's article, which discusses how Radcliffe's confession to his attorneys was inadvertently disclosed to the district attorney and to the presiding trial judge, but not to the jury or the public, is particularly interesting.

¹⁵ McIntyre, supra at 3-4; II R. Current, The History of Wisconsin, The Civil War Era, 1848-1873 190 (1976).

¹⁶ A letter to Platteville Independent American in 1846 stated that a constitutional amendment against capital punishment failed due to the lack of a penitentiary. M. Quaife, The Struggle Over Ratification, 1846-1847 120 (1920).

¹⁷ Senator Bovee went on to become a national leader in the movement against capital punishment. He authored a book on the topic - Christ And The Gallows; Or, Reasons For The Abolition of Capital Punishment (1870) - and testified and spoke in many states in favor of death penalty reform throughout the 1860s and '70s. E. McIntyre, A Farmer Halts The Hangman: The Story of Marvin Bovee, Wis. Mag. of Hist. (Autumn 1958). Representative Sholes was of course very well acquainted with the McCaffary murder case as it is his newspaper, The Kenosha Telegraph, which provides us today with practically the only first-hand information still in existence. Besides being remembered as a reformer, Sholes is also credited by many as the inventor of the typewriter. Watkins, The Death House, Amer. Heritage June/July 1979 at 49.

¹⁸ Current, supra at 191-5.

¹⁹ McIntyre, supra at 7.

²⁰ Robbins, supra at 2-3.

²¹ W. Bowers, Executions in America 6-7 (1974).

²² In the last 130 years the Michigan legislature created several capital offenses, but no one was executed under those statutes. Currently, Michigan laws are without the death penalty. Several times in the last twenty years, however, a group of pro-penalty supporters have attempted to collect enough signatures to have the issue of re-establishing the death penalty for murder put to a referendum vote. Polls indicate that if the issue made it onto the ballet, a majority of Michigan voters would vote in favor of re-establishing the death penalty.

²³ Bowers, supra at 4.

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