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Michigan Constitutional History

Capital Punishment©

Copyright, 2002, by Eugene G. Wanger

&MICHIGAN

Several years ago a legislator in Texas was asked if he would vote to abolish capitalpunishment. ‘‘No,’’ he replied, ‘‘capitalpunishment was good enough for my fatherand it’s good enough for me.’’

That could not have happened in Michigan,for our state, by statute in 1846, was the firstgovernment in the English-speaking world toabolish capital punishment for murder andlesser crimes. Our state has never restored it.Since 1964, Michigan’s constitution hasprohibited it.

Michigan Constitutional History

B Y E U G E N E G . W A N G E R

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T oday, following Michigan’s lead, a majority of all the nations onearth—including Canada, Mexico,England, Scandinavia, and almost

all of Europe—have abolished the deathpenalty, either de jure or de facto; but Amer-ica (with the exception of Michigan and 12other states) is one of the world’s principalexecuting nations. Since 1998, only Com-munist China and the Congo have executedmore people than the United States. Iraq andIran are not far behind.

What has created this unique and para-doxical situation? How did Michigan cometo abolish the death penalty so early, andhow has that position been maintained?

The initial inspiration seems to havecome from the eighteenth-century EuropeanEnlightenment. That was a time when thecriminal law of civilized countries every-where was ferocious, imposing torture anddeath for dozens—and in England as manyas 200—of even the most trivial crimes.

Human life was cheap, especially if itwas the life of the lowly. Executions werecommon entertainment. Men and some-times women were executed without qualmsand with dispatch, normally after rapid andperfunctory proceedings. As AlexanderPope said,

The hungry Judges soon the Sentence sign,And Wretches hang that Jury-men may Dine.

Does all of this seem to you like a verylong time ago? Then talk to Bette Hulbert,recently retired director of the Michigan His-torical Museum, who remembers her great-grandmother telling her of being taken whenshe was a little schoolgirl in Northern Franceto the center of town with the other childrento see a man have his limbs each tied to oneof four ‘‘big white horses’’ that then ‘‘justkept going’’ until they pulled him apart.

Put the scaffold on the Commons, Where the multitude can meet;All the schools and ladies summon, Let them all enjoy the treat.

In London, where picking pockets was ahanging offense, pickpockets plied theirtrade with greatest success at the publichangings, when everyone else was ‘‘looking

up’’; and as late as 1807, at a triple hangingoutside the Old Bailey, the pressure of thecrowd to see the final struggles of the con-demned was so great that 30 of the specta-tors were crushed to death at the foot of thegallows. A publication of the time even givestheir names and addresses.

In combating these and other evils for al-most a hundred years, the philosophes, as theleaders of the Enlightenment were called,assiduously promoted a highly critical atti-tude toward the authority of the past and in-culcated a powerfully optimistic view thatthe lot of humanity could be vastly improvedthrough the application of human reason.

When the ideas of the Enlightenmentswept across the Atlantic Ocean, they becamewell known to the leaders of the AmericanColonies. Here, unlike in England, therewere only about a dozen crimes punishableby death. And here in the Colonies it trou-bled many to think, or be told, that amongother things the death penalty might violatefundamental principles of Christianity.

The death penalty abolition campaignwas begun by the American patriot, staunchChristian, signer of the Declaration of Inde-pendence, and eminent physician, BenjaminRush of Philadelphia. He was the first Amer-ican to speak out against the penalty of deathfor murder, which he did in a paper he readat Benjamin Franklin’s house on March 9,

1787, and in an essay published in TheAmerican Museum magazine for July of thefollowing year.

Rush widely distributed these essays andthe campaign to abolish the death penalty inAmerica was on. Many brilliant and talentedreform leaders joined the fray, concentratingmainly in New England, New York, andPennsylvania. The first success, however, wasachieved in the wilds of Michigan. Peopledlargely by immigrants from New York andNew England, and with little experience ofexecutions, Michigan Territory held a dis-agreeably traumatic hanging in Detroit in1830. The following January, GovernorLewis Cass—still considered Michigan’sgreatest public servant—told the Territory’sLegislative Council, ‘‘The period is probablynot far distant, when it will be universally acknowledged, that all the just objects ofhuman laws may be fully answered, withoutthe infliction of capital punishment.’’

Four years later, Michigan initially grap-pled with the capital punishment questionwhen writing its first state Constitution in1835. On the fourth day of the Constitu-tional Convention, one committee proposeda constitution stating in part, ‘‘Capital pun-ishment ought not to be inflicted; the truedesign of all punishment being to reform,not to exterminate mankind.’’

But the proposal was not adopted, and aprevailing sentiment in the brief debate ap-peared to be that the state was as yet unpre-pared to ‘‘make all necessary and adequateprovision for the safe and sure confinementof criminals.’’ Michigan’s capital punishmentabolitionists, however, would soon be back.

The next few years saw them conduct sev-eral legislative skirmishes without result, andin about 1840, Michiganians learned that theCanadians had hanged an innocent manthree years before just across the river in whatis now Windsor, the true culprit later havingmade a death-bed confession of his guilt.

In 1844, a joint committee of the Michi-gan Senate and House issued a report urgingthat the death penalty be abolished, but thecommittee’s minority disagreed and theHouse sided with them by a vote of 34 to10. In the report a substantial space is devoted to whether government has the

Lewis Cass. Black and white reproduction of adaguerreotype ca. 1855-1860. The photographer isunknown. (Courtesy of the Chicago Historical Society)

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theoretical right to impose the death penalty,a question involving the fundamental natureof government itself. Such basic questionswere much on the minds of our Americanforebears as they settled this new land.

It is interesting that both sides went outof their way to support the religious argu-ment (the majority taking over a page to doso), while at the same time saying that it wasnot really relevant to the debate. This argu-ment, which was a dominant theme in thecapital punishment abolition movement,generally pitted the hopeful injunctions ofthe four Christian Gospels against the an-

cient and somber poetry of Genesis 9:6,which advises, ‘‘Whoso sheddeth man’sblood, by man shall his blood be shed.’’

The abolitionist majority barely men-tioned the deterrence argument at all, al-though they could have cited a number ofauthorities from the Eastern States. On theother hand, the committee minority, who fa-vored the death penalty, expressly rested theirentire case on the deterrence argument.

In 1846, victory in Michigan was at handas the legislature undertook a general revisionof all the state’s laws, including its lengthycriminal code. The state’s determined capitalpunishment abolitionists were ready. Theywere apparently led by Democratic SenatorCharles P. Bush, later a prominent Lansingite,and by Whig House-member Austin Blair,who later became Michigan’s great Republi-can Civil War governor. Blair, who chairedthe House Judiciary Committee, would laterrecall that his contribution to the deathpenalty’s demise was ‘‘among the best piecesof work’’ that he ever did.

Equally dedicated were Senator FlaviusLittlejohn, who was later a Whig candidate

for governor, judge, and noted Michigan his-torical author and Senator William T. How-ell, then president pro tem of the Senate, whowas later appointed by President Lincoln tobe Associate Justice of the Arizona Territoryand who authored its first code of laws.

Even with such leadership, getting rid of‘‘death’’ for first-degree murder was moreeasily said than done, but after much skir-mishing, that penalty was finally fixed at‘‘solitary confinement at hard labor in thestate prison for life.’’ As long-time politicalobserver and retired Wayne County judgeJames Lincoln said, it looked like the Senate

held the whole criminal code hostage untilthe House came around. One enthusiasticsupporter from the Eastern States reported,‘‘The sun has risen in the West!’’

Shortly afterwards, a condemned mur-derer awaiting execution at Michigan’s newprison in Jackson was pardoned when thedeath-bed confession of the real killershowed he was innocent and the new lawproviding for life imprisonment for murderinstead of death became effective on March1, 1847.

How did this remarkable, unprecedentedchange happen? In the absence of better evi-dence, we seem to be forced back upon theeighteenth-century proposition that theseabolitionists, following the tradition of theEnlightenment, were rational people whosimply took the arguments and evidence forcapital punishment, weighed them in thebalance of human reason, and found themwanting. If this is so, the implications areprofound.

Four years after capital punishment wasabolished, Michigan held its second constitu-tional convention. The ‘‘Con-Con’’ of 1850

was the first Michigan public body to haveits debates reported verbatim and several ofthem were lively. A committee proposed thatthe death penalty be prohibited, but the pro-posal was rejected.

The arguments most often voiced werethat the subject should be left to the legisla-ture and that including it in the constitutionwould cause the people to reject the docu-ment. One delegate noted that historicallyeven Catherine the Great, of Russia, had torestore the death penalty, citing as his au-thority ‘‘Boccacio, on crimes.’’ Another dele-gate, with unblushing candor, said that hewas mightily sorry the whole subject hadcome up, but that since it had he was goingto vote for it anyway.

Between 1846 and the end of the century,several efforts to restore capital punishmentin Michigan met with no success and thestate’s officials were frequently asked for theirviews. Austin Blair was quoted at length bythe great John Bright in the British House ofCommons in 1864, and letters from severalMichigan prison off icials were publishedconfirming that Michigan’s abolition hadnot raised the murder rate.

In 1881, an elderly black woman, perhapsMichigan’s all-time greatest fighter for humanrights, the famed Sojourner Truth, told ourlegislature, which was then about to vote onwhether to bring the death penalty back, ‘‘Weare the makers of murderers if we do it.’’ Andin 1891, Michigan’s greatest judge and legalscholar, the internationally renowned ThomasM. Cooley, wrote:

The fundamental objection to the taking ofhuman life by law is found in the tendency todestroy in men’s minds the sense of the sacred-ness of life and to accustom them to regardwithout fear or horror its destruction . . . .Mankind are not to be impressed with thepriceless value of existence by spectacles of de-liberate executions, and so long as the statejustifies the taking of life for crime against so-ciety, individuals will frame in their ownminds excuses for taking it for offenses real orimaginary against themselves, or will take itwithout excuse when it stands in the way oftheir desires.

Sojourner Truth had said it all in 10 wordsthe decade before.

Michigan Constitutional HistoryMichigan Constitutional History

Original handwritten draft of the 1964 Michigan Constitution's death penalty prohibition.

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The death penalty wasn’t even mentionedat our state’s constitutional convention of1908. But as the flapper era dawned and pro-hibition put bootlegging on a business-likebasis, crime rates began to rise. An irateMichigan legislature passed a death penaltybill with a referendum provision in 1931,which was soundly rejected by a vote of thepeople. Frank Murphy and Henry Ford wereamong the notable Michiganians against it.

By 1956, the Michigan House or Senatehad voted eight times for capital punishmentduring the twentieth century. As the sixthdecade of the century approached, voicesbegan to be heard that Michigan’s much-amended 1908 state constitution should berevised, and 144 delegates were elected by thepeople to a constitutional convention for thatpurpose in 1961.

Although the state’s electorate was equallydivided between the two major parties, two-thirds of the delegates it elected were Repub-lican, most very conservative. So far as isknown, neither the candidates nor anyone elsehad suggested that capital punishment was asubject for constitutional treatment. Certainlyit had never entered the mind of the conven-tion’s youngest Republican delegate, who waselected from the city of Lansing.

Ignorant of almost all the foregoing his-tory, this delegate, only three years a lawyer,inspired by a law journal article on the deathpenalty that he picked up at law school andnow found in his file, drafted a proposal—the only one on the subject as it turnedout—which by an unusual turn came beforethe committee he was on. He drafted thefinal language, wrote the committee report,and even organized the floor debate support-ing it. It passed the convention with onlythree dissenting votes. This would not havehappened without the steadfast support ofconvention vice-president and leader of the

Democratic delegates, Tom Downs, and thelanguage, ‘‘No law shall be enacted providingfor the penalty of death,’’ became part of theMichigan constitution.

Eight years later, the United States Su-preme Court decided Furman v Georgia,finding the death penalty as then adminis-tered in America to be unconstitutional. Inanother four years, the Supreme Court de-cided Gregg, legalizing that penalty underdifferent procedures. During all these years,the crime rates had been rising and the pub-lic suddenly seemed more frustrated, fearful,and angry than it had been in a long time.

Calls for restoring the death penalty inMichigan were heard and after the propo-nents of execution failed in the legislature,the first of four statewide petition drives wasstarted to repeal the constitutional ban. TheState Board of Canvassers and the courts,however, aided by the volunteer legal servicesof election law expert Tom Downs, deter-mined that the petitions lacked sufficient sig-

natures. About three years ago, another trywas made in the legislature that resoundinglyfailed, and Michigan’s historic ban of capitalpunishment remains.

Over the decades, more than a dozenprincipal arguments have been made againstthe death penalty in America; but for thepast few years, most of the attention seems tobe concentrating upon these three:

1. It now appears to be a moral certainty,especially in the light of recent DNA ev-idence, that we are occasionally execut-ing the innocent.

2. Around the world, and especially in Eu-rope, capital punishment is increasinglyviewed as a violation of basic interna-tional human rights.

3. The death penalty in the modern world isbeing seen as contrary to fundamentalprinciples of religion. Not only manyChristian leaders, but also many Jewishand some Muslim leaders, have joined inthis view.

In so controversial an area it is alwaysgood to find common ground. Most peoplewould agree with the proposition that noquestion of public policy, except peace andwar, is more important than whether or not,or under what circumstances, governmentshould be authorized by its citizens to killpeople. After all, in a democracy, where thepeople are sovereign, when the governmentkills, it kills for you. ♦

Sources and references will be found in the author’sleading article in 13 Thomas M. Cooley Law Review,No. 3 (1996).

A member of the Michigan and Federal Bars, EugeneG. Wanger is the author of Michigan’s constitutionalprohibition of the death penalty and since 1972 hasbeen co-chair of the Michigan Committee AgainstCapital Punishment. His library on the subject isperhaps the largest in America in private hands.

Thomas M. Cooley. Oil on canvas portrait by L.T. Ives,presented on October 13, 1885. Photograph by DougElbinger, 1996. (Courtesy of the Michigan SupremeCourt Historical Society)

Most people would agree with the proposition that no question of public policy, except peace and war, is more important thanwhether or not, or under what circumstances, government should be authorized by its citizens to kill people.