Wisconsin: First to kill the death penalty

A botched 1851 public execution sparked a ban that remains in place

Florida execution chamber for lethal injection

Attorney General William Barr announced last week that the federal government will begin executing prisoners in December after a 16-year hiatus. President Donald Trump, a longtime supporter of capital punishment, has called for its expansion to punish certain drug crimes and his Supreme Court appointments have moved the court to the right on this issue. 

Together they have brought a national debate over the death penalty back to the forefront. In fact, since 2016 there has been a small uptick in death penalty support, after decades of it dropping in public opinion polls and states adopting bans or moratoriums on its use.

Attorney General William Barr (Photo by Win McNamee/Getty Images)

Wisconsin has led the nation as an anti-death-penalty state for 166 years, despite nearly a decade of Republican control by Trump supporters and several decades of new tough-on-crime laws. Wisconsin was the first state to permanently end the death penalty for all crimes with the Death Penalty Repeal Act signed into law on July 10, 1853. And it is the only state to have put just one person — John McCaffary in 1851 — to death under state law.

In fact, the gruesome and bungled execution of McCaffary in Kenosha sparked the movement that led to repeal two years later.

“I think the death penalty is one of those issues that cuts across usual partisan positions and some of the strongest opposition comes from the faith communities,” said Chris Ott, executive director of ACLU-Wisconsin. “That could be part of what is going on that sets us apart in Wisconsin. We’ve seen a lot of political shifts, but I still think of Wisconsin as a progressive state where I believe there is a decency — I want to believe it’s part of who we are.”

The hanging of John McCaffary

The shackles used in 1851 on John McCaffary–the first and last person put to death in Wisconsin state history. (Photo from the collections of the Kenosha County Historical Society)

There is no one better to tell the story of Wisconsin’s single state-sanctioned execution than Diane Giles, a long-time historical columnist for the Kenosha News and avid local history expert. She believes that understanding Wisconsin’s history with capital punishment requires a return to Kenosha in 1851. 

It was then that John McCaffary was convicted of drowning his wife Bridgett McCaffary in a sunken cistern in the backyard of their home in 18 inches of water. Neighbors reported hearing her scream for mercy, said Giles. He was found guilty in an hour-and-a-half and sentenced to death.

A crowd of around 3,000 spectators, a third of them women and children, gathered to watch the execution, which Giles found documented in newspapers and the mayor’s diary. (Kenosha at the time had a population of 3,455.) All hotels were filled and there was a loud “carnival-like atmosphere” of “morbid excitement” as people lined up early along the route.

Kenosha historian Diane Giles (Photo: Kevin Poirier)

 At noon the sheriff led McCaffary to an unusual gallows — not one with a trap door that causes instant death from a broken neck. Giles noted this one featured a mechanism that, once released, “hoisted him into the air with a pulley.” With his hands and legs still secured, McCaffary struggled and thrashed for a full five minutes, slowing down over another three minutes before becoming unconscious. As the crowd watched, two doctors present determined he was still alive slowly strangling to death at the end of the rope for another 10 or more minutes, causing the editor of the Kenosha Democrat to label the execution, “nothing but a cold blooded murder.”  According to another headline Giles cited, this stirred up “a public outcry heard all the way to the state Capitol.”

So began the movement against capital punishment in Wisconsin, led by state Sen. Christopher Latham Sholes, who witnessed the execution, said Giles. Sholes, also editor of the Kenosha Telegraph, editorialized against it as a “barbarous act of vengeance, revenge and legalized murder.” Joining forces with Waukesha farmer turned state Sen. Marvin Bovee they ended capital punishment, replacing it with life in prison as the penalty for murder, aided by the opening of Waupun prison.

Interior cell blocks at Waupun prison in 1893.

“The burning editorials in the local papers, the work of Sholes and other politicians and the sentiment that the execution was a ‘moral stain’ on the community — that is why it was stopped in Wisconsin,” said Giles. 

Turning tide on capital punishment

Fast-forward to today; many states have followed Wisconsin’s lead. Washington State struck down the death penalty last year and New Hampshire did so in late May. Earlier this year, California Gov. Gavin Newsom signed a moratorium on the practice. Half of the states have now either banned the practice (21 states) or have a standing moratorium (four states). Nine additional states have not performed an execution in more than a decade.

In Wisconsin, death penalty debates have returned — often sparked by high-profile crimes. According to the Death Penalty Information Center report: “The most prominent push for reinstatement of the death penalty in Wisconsin came in the early 1990s after the full scope of serial killer Jeffrey Dahmer’s crimes became public knowledge. Stories of brutal murder, dismemberment, necrophilia and cannibalism outraged the public, and some state politicians began calling for the return of capital punishment.” There were 22 bills to reinstate capital punishment from 1991 to 1996, but none made it to the floor in the legislature.

In 2006, Wisconsin held a rare public vote to reinstate the death penalty for cases involving DNA evidence. The advisory referendum, conducted in the weeks surrounding Innocence Network client Steven Avery’s trial for the 2005 murder of photographer Teresa Halbach near Manitowoc, passed with 55% of the vote. The legislature declined to pursue it.

In his statement on the dramatic reversal that could resume federal executions, Attorney General Barr said, “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals … The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

National public opinion favoring the death penalty has been declining for four decades until sentiment was near evenly divided. However, there has been an uptick since 2016, according to the Pew Research Center, with 54% support for capital punishment after murder convictions.

Advocates for the death penalty claim it serves as a deterrent and honors victims. The ACLU’s Ott says the top predictors of a capital punishment sentence are not the seriousness of the crime, but the quality of the defense lawyer (often determined by ability to pay), the race of the victim (people of color are far more likely to be executed) and where the crime occurred (most executions are in the South). 

“The thought that innocent people were being put to death is horrifying to think about,” said Ott. “It’s a broken process and the system has failed to protect the innocent.”

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