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Abe Clayton, Elmer Jackson and Israel McGhie
This April 2018 photo shows the Clayton-Jackson-McGhie Memorial in Duluth, Minnesota. The memorial remembers Abe Clayton, Elmer Jackson and Israel McGhie, who were dragged from the downtown jail by a mob and lynched on June 15, 1920. (Photo: Minnesota Public Radio via AP)

Perspectives: Duluth lynching recalls state law and lore here

“The state continues to kill its victims… to appease the mob’s emotions of hate and revenge” Attorney Clarence Darrow, “The Futility of the Death Penalty” (1928)

One of the countless interruptions in activities and events wrought by the coronavirus pandemic is the postponement of the commemoration of the 100th anniversary of one of the darkest moments in Minnesota history: the lynching of three African American circus workers in Duluth on an unsubstantiated rumor that they had raped and robbed a 19 year-old white woman. The event takes on particular prominence in light of the death of George Floyd at the hands (and knee) of Minneapolis police on Memorial Day evening, which has been caustically characterized as a form of “lynching” and the ensuing racial awakening, protests, and social unrest it bred in the Twin Cities and throughout the country.

The three men — Abe Clayton, Elmer Jackson and Israel McGhie — were dragged from the downtown jail by a mob on June 15, 1920, at a spot located at the intersection of First Street and Second Avenue, now set aside as a modest memorial established in 2003 that, fittingly, has been the site of protests of racial injustice in the wake of the Floyd killing. The Duluth lynching a century ago this week, the only known one of African Americans in this state, was among nearly two dozen reported extra-judicial hangings in Minnesota. The others were whites and Native Americans.

The Duluth lynching was one of an estimated 9,000-plus lynchings with heavy racial overtones from 1882 to 1968. About two-thirds of African Americans, according to a study by the National Association for the Advancement of Colored People (NAACP), and many of the 1,200-plus whites were lynched due to their support of African Americans’ rights or their associations with them.

Those figures do not include authorized hangings like the execution in Mankato on December 26, 1862, of 38 Native Americans captured during the short-lived Dakota war in the midst of the Civil War. The event was the largest mass execution in the country, and would have been larger had President Abraham Lincoln not commuted 264 of the condemned men. Regarded by political critics of his leniency, a week before his Emancipation Proclamation went into effect, he declared: “I could not afford to hang men for votes.”

The temporary delay of the Duluth lynchings commemoration does not erase the memories of the event, which also was to be commemorated in other ways, including events conducted by the Minnesota State Bar Association.

The Duluth commemoration has been postponed until next June, the 101st anniversary, due to the COVID-19 crisis, although some other memorial events will either occur online or be rescheduled.

Looms Large

The lynching looms large in Minnesota law, including the enactment 10 months later of a state anti-lynching law. Ch. 401 #F. No. 785, providing compensation for relatives of victims and suspension of law enforcement personnel who fail to protect them from mobs. It was the precursor to calls for similar legislation on the national level, which never materialized due to the strength of southern members of Congress, who opposed it, and President Franklin D. Roosevelt’s reluctance to agree, which was intended to keep his electoral and legislative programs intact during the New Deal era.

A similar federal measure, known as the Justice for Victims of Lynching Act, has been passed by the House of Representatives in 2018, but has not moved through for final approval by the Senate. It’s one of some 200 federal anti-lynching bills introduced over the years.

But the one that’s had the most traction is the Emmett Till Anti-Lynching Act, named after the 14-year-old black youth in Mississippi whose slaying by angry whites in 1955 helped launch the Civil Rights movement of that era. Passed overwhelmingly by the House of Representatives, it had full support of 99 senators as of the time of Floyd’s death, but was being held up by opposition of a single solon, Rand Paul, a Kentucky Republican, who objected to some of the provisions of the measure, which would add “lynching” to the existing statute authorizing criminal sanctions against transgressions of federal civil rights laws.

The 99-year-old Minnesota law has never been implemented because there have been no known lynchings here since that time.

Nor have any authorized executions occurred, either, dating back to the state’s abolition of capital punishment more than a century ago.

Twists and turns

The centennial commemoration of the Duluth lynching, also commemorated by a plaque at the site in downtown Duluth, recalls the lore of capital punishment in this state, replete with colorful characters, constitutional considerations, and several twists and turns, not only at the hands of the hangman.

Minnesota remains one of 21 states that do not have capital punishment, a number that has grown from a dozen at the beginning of this millennium. But it did exist here from territorial days to 1911, after a botched execution led to a constitutional controversy and ultimately the elimination of the death penalty here.

Two years after statehood, a sensational case resulted in the execution in 1860 of a St. Paul housewife, Ann Bilansky, for poisoning her husband. She was the first white person and the only woman ever executed in Minnesota. Her execution led to legislation in 1868 barring capital punishment unless specifically prescribed by a jury.

Cole Younger, a member of the legendary Jesse James gang, tested the law after his capture following the gang’s ill-fated bank robbery in Northfield on Sept. 7, 1876, which took the life of bank clerk Jonah Hayward who refused to open the safe. The event is commemorated in numerous cinematic presentations, as well as the city’s annual “Jesse James Days.”

Destined for a first degree murder charge and likely hanging, Younger, whose brother also was captured and jailed with him at the Stillwater prison, avoided the noose by pleading guilty to second-degree murder, a non-capital offense, and the prosecutor was unable to overturn his plea to seek justice on the gallows.

Younger’s maneuver led the Legislature in 1887 to provide for capital punishment in first-degree murder cases, unless “exceptional circumstances” justify a life sentence, which would then be decided solely by a trial judge, rather than a jury.

The controversy over public executions led to new legislation in 1889, known for its legislative author, the “John Day Smith” law. It restricted public access to hangings, the only official form of capital punishment at that time, and prohibited newspaper reporters from attending executions or publishing any matters related to an execution “beyond the statement of the fact that such conduct was on the day in question duly executed.”

Brutal botching

In 1906, Walter Williams, convicted of killing a teenage boy, was to be hanged in the basement of the Ramsey County Courthouse. But the execution was bungled because of a miscalculation of the length of the rope; the murderer was left dangling for nearly 15 minutes before he was pronounced dead.

Front page newspaper stories about the gaffe, commenting on its brutality, caused public clamor, including a promise by Gov. John Johnson that he would resign his office rather than aid in the execution of a guilty man.

The media of the time played a large role in the unfolding events. Three local newspapers that published articles about the hanging were charged with violating the “John Day Smith” law. The newspapers challenged the measure, claiming that it violated both federal and state constitutional protection for freedom of the press, a proposition rejected by a Ramsey County District Court judge.

The Minnesota Supreme Court affirmed the lower court ruling in State v. Pioneer Press, 110 N.W. 867 (Minn. 1907). Rejecting claims under both the federal and state constitutions, it held that the ban on reporting constituted a valid means to avoid “exciting an unwholesome effect on the public mind,” while advancing “public morals.” In so doing, it rejected the contention that the prohibition on publication was barred by the First Amendment, noting that the First Amendment does not apply to the states.

Changing course

The Minnesota hanging history changed the course of both capital punishment and the First Amendment. Due to the woes of the Williams debacle, the state Legislature abolished capital punishment in 1911, replacing it with life imprisonment designated as the sanction for first-degree murder.

But the issue of applicability of the Bill of Rights to the states remained dangling, like convicted killer Williams on the gallows. It was another Minnesota case that adopted the principle of “incorporation” of the Bill of Rights to the state. In the landmark case of Near v. Minnesota, 283 U.S. 697 (1931), the U.S. Supreme Court reversed a ruling of the Minnesota Supreme Court, in 1931, by a narrow 5-4 ruling, struck down a Minnesota statute known as a “public nuisance” law that allowed suppression of unpopular publications.

The case is notable for being the initial one in which the First Amendment was applied to the states, a proposition that the court in Near deemed “unexceptional.” The court stated that it “is no longer open to doubt” that the freedom of press and speech provision applies to “invasion by state action,” a proposition at odds with precedent.

That casual treatment was hardly foreshadowed by prior case law from Minnesota, 15 years earlier outlined in Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916). The high court rejected a claim of constitutional “incorporation” in a case from Minnesota questioning whether the jury trial provision of the Seventh Amendment of the U.S. Constitution requiring unanimity applies in civil cases to states. The Supreme Court rejected the argument in Bombolis, a proposition that it later cavalierly deemed established beyond cavil in Near.

But the issues resurfaced in a criminal context when the high court this term addressed the aberrant non-unanimous jury verdict law in Louisiana criminal cases. The case, Ramos v. Louisiana involved a second-degree murder verdict by a split 10-2 jury vote after only two hours of deliberation. The outcome was greeted skeptically by several jurists on opening day of the term last October, with expression of concern by Justice Brett Kavanagh about suspected racial motivation for the practice, dating back to the Jim Crow era of 1898. A similar law was enacted in Oregon in 1934, reportedly spurred by anti-Semitism there.

This spring, while working remotely due to COVID-19, the court ruled against the law, holding that it violated the Seventh Amendment right to a unanimous jury trial. Allowing a 10-person vote among 12 jurors to the felony offenses, although a number of states allow non-unanimous juries in misdemeanor cases, but not Minnesota, which requires unanimity in all criminal prosecutions. The Oregon measure was narrowly upheld by a 5-4 vote of the Supreme Court in Apodaca v. Oregon, 406 U.S. 404 (1972), but the issue has been lingering due to concerns about capital offenses. The Louisiana law, incidentally, was scrapped by that state’s legislature, but not retroactive to the Ramus case.


Some death penalty figures

People sentenced to death in U.S. since 1976: about 7,800.

Number of U.S. executions: more than 1,500.

Number now on death row: About 2,800.

Estimated number of executions in Minnesota: 65.

Valid & viable

Capital punishment remains valid and viable despite the many challenges it has encountered over the years since the high court first struck down the practice as “cruel and unusual” violative of the Eighth Amendment as then administered in Furman v. Georgia, 408 U.S. 238 (1972), and then allowed its reinstatement under more rigorous standards four years later in Gregg v. Georgia, 428 U.S. 1534 (1976).

While Minnesota has not conducted capital punishment for more than a century, the number of executions nationwide has remained stable over the past five years at two dozen, two per month, following a precipitous dip in 2015.

Lynching and capital punishment have returned to the public attention lately due to several occurrences.

The Washington State University football coach Mike Leach was rebuked and ultimately reprimanded this spring for disseminating a joke about a woman knitting a noose for her husband during the coronavirus shelter-in-place period.

In a divided 8-4 ruling, 11th U.S. Circuit Court of Appeals in Sealey v. Warden, 954 F.3d 1338 (March 31, 2020), refused to allow unsealing of grand jury proceedings regarding a notorious 1946 lynching of pro-African-American couples in Georgia. See Court’s Grand Jurors records from lynching can’t be released,” in the April 2, 2020, edition of Minnesota Lawyer, the dissenters was appointed by President Bill Clinton, and three others were appointees of President Barack Obama.

Another divided federal appellate court, the DC Circuit, in early April, voted 2-1 in favor of an effort by the Trump administration to resume executions in the federal cases after a hiatus of 17 years in Roane v. Barr, 864 F.3d 650 (DC Cir. April 7, 2020). Sole dissenter was a Clinton appointee.

Here in the 8th Circuit, the appellate court also addressed a capital punishment case this spring. Relying on Supreme Court precedent, it denied a challenge to a capital sentence based on a constitutional claim that the form of lethal injection constituted cruel and unusual punishment violative of the Eighth Amendment in Johnson v. Precythe, 954 F.3d 1098 (8th Cir. 2020).

These occurrences are a reminder of the law, lore and legends of official and unofficial impositions of death. When asked about capital punishment during one of his spoofing presidential campaigns, the late comedian Pat Paulsen, explained why he was against the practice: “Washington, D.C. has already been punished enough.”

But the Duluth lynching serves as a reminder on its centenary that capital punishment is no laughing matter.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.   


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