Wisconsin Voters to Weigh In on Matter of Life or Death Penalty

More than 150 years separated the murders of Bridgett McCaffry and Teresa Halbach, but they may prove to be historic bookends to Wisconsin’s 1853 law banning executions.

Voters in Wisconsin will be asked in November whether the Legislature should enact the death penalty, ending the second-longest prohibition on capital punishment in the country.

Although it is an advisory referendum, the outcome is awaited with great anticipation by activists on both sides of the debate because votes on the death penalty usually are confined to legislatures and courtrooms. Referendums have been rare in the public arena, where years of polls show consistently strong support for capital punishment.

But the upper Midwest states have long histories of resistance to the death penalty, and the coming Wisconsin vote is the first potential crack in that fortress. If the referendum returns a yes for the death penalty, pressure will build on Wisconsin lawmakers -- who in effect asked voters for their opinion -- to respond to public sentiment.

“I’m certainly worried about it. I take it very seriously,” E. Michael McCann, Milwaukee County’s district attorney, said. He is a longtime opponent of the death penalty.

The last execution in Wisconsin was in 1851. Nearly 3,000 people showed up in Kenosha to watch the hanging of John McCaffry, convicted of killing his wife, Bridgett. McCaffry struggled at the end of the rope for several minutes before dying, according to local reports. Two years later, the state outlawed the death penalty.

Through decades of occasionally horrific murders -- most notably those by Jeffrey Dahmer, who killed 17 men and boys between 1978 and 1991 -- the state’s death penalty ban stood, despite repeated legislative efforts to overturn it.

Whether by coincidence or the persistence of death penalty advocates, official political resistance shifted after the slaying in October of Teresa Halbach, a young freelance photographer. Steven Avery, who was released from prison in 2003 after being wrongfully convicted of an assault, has been charged with Halbach’s death.

Avery is scheduled to go on trial Oct. 16, three weeks before the vote. Death penalty opponents say the timing of the trial smacks of election-year politics, a charge supporters of the measure deny.

State Sen. Alan Lasee has been pushing for the death penalty for 28 years. He said a “number of vicious murders over the years -- and one in particular,” Halbach’s, helped clear the way for the referendum.

“I believe a majority of Wisconsin citizens strongly support the death penalty,” he said.

Polls suggest Lasee is right. A late March/early April poll by the St. Norbert College Survey Center and Wisconsin Public Radio found that 61% of respondents said they would vote yes for a referendum question similar to the one heading for the November ballot; 33% were opposed.

A recent USA Today/Gallup Poll showed similar support nationwide -- 65% favored the death penalty for those convicted of murder; 28% opposed it.

“What’s happening in Wisconsin is in response to a particular crime,” said Richard Dieter, executive director of the Death Penalty Information Center, a Washington advocacy group that has criticized the way capital punishment has been applied in the United States.

“Legislators would be hard-pressed to reject the public’s sentiments, but there are public policy reasons for doing so,” Dieter argued. He pointed to the January 2000 decision by then-Illinois Gov. George Ryan to impose a moratorium on the death penalty after an investigation by the Chicago Tribune raised questions about how it was applied. The moratorium is still in effect.

“The death penalty used to be an easy sell,” Dieter said. “Now it’s a multi-sided issue.”

Opponents of capital punishment argue that support for the death penalty has dropped in recent years. Since the Supreme Court reinstated the death penalty in 1976, however, public support has remained fairly consistent, about 65%, according to Gallup.

Twelve states and the District of Columbia do not allow the death penalty, and in some of them the ban is deeply rooted. The prohibition has been part of the Michigan Constitution since 1846.

Minnesota’s last execution was in 1911; in Massachusetts it was 1947. Yet legislatures in those states -- usually in response to specific cases -- have recently tried to overturn death penalty bans.

In Oregon, four votes have been held on the death penalty in the last century, two approving it and two rejecting it. Capital punishment has been in effect in Oregon since the mid-1980s and a campaign to repeal it in 2002 was abandoned after polls showed overwhelming support for it.

“This is a decision that each state has to make individually, and a lot of times it depends on what’s going on -- a particularly horrific set of murders,” said Joshua Marquis, the Clatsop County, Ore., district attorney and vice president of the National District Attorneys Assn.

“Generally you have different states with different philosophies.... I think this vacillating back and forth will continue for a long time,” said Marquis, a death penalty advocate who supports letting citizens vote on the issue.

If Wisconsin voters approve the death penalty by a margin that reflects national polls, it probably would open a contentious chapter in the state’s death penalty politics, one influenced by an unusual entrant -- a referendum.

Keith Findley, a law professor at the University of Wisconsin-Madison and co-director of the Wisconsin Innocence Project, which provides legal assistance to inmates who contend they have been wrongly convicted, said it would take a “seismic change” to overturn generations of cultural opposition to the death penalty in the state.

“We haven’t had it since 1853. Certainly a lot of people want it [death penalty] but a lot of people don’t,” Findley said, pointing to judges and prosecutors, such as Milwaukee County’s McCann.

“This is an advisory referendum, and even if it passes, it will not mean by any stretch that we’ll have it,” he said. “It would still have to pass the Legislature.”