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Breaking With Tradition: The Proposed Death Penalty Legislation in Minnesota

Presented by Representative Keith Ellison
March 18, 2004
Summary of Remarks

Representative Ellison began by thanking Dorsey & Whitney, citing them as one of the best law firms in Minnesota and the country. He commended them for their moral position on such a pressing and urgent issue, as the death penalty. In addition, Rep. Ellison mentioned that he was proud to have been at the law firm of Lindquist & Vennum with attorney Steve Pincus, with whom he drove to Louisiana when they represented a death row inmate named Albert Burrell. He also commended the other Minnesota attorneys who have made a Herculean effort to achieve justice.

Rep. Ellison began by describing the history of capital punishment in Minnesota. Minnesota had been a death penalty state for many years until 1911, when it abolished capital punishment. He differentiated between lynching, an extralegal or illegal procedure, and the death penalty, which is carried out by a democratically elected government exacting the most severe penalty. Prior to 1911, Minnesota was the site of the largest mass hanging in U.S. history. In 1862, 38 members of the Sioux nation were hung by their neck simultaneously. Minnesota was also not honored by the Duluth lynching in 1920, which killed three black men who were suspected of raping a white woman. They were innocent. So, Minnesota is not pristine. Minnesota knows the death penalty and is no better and no worse than anyone else. And while Minnesota still has wonderful things here, Minnesota can still do better.

In 1906, the last hanging occurred in St. Paul. Minnesota tried to do its executions at nighttime and prohibited the press from reporting on them. However, the rope was too long. When the lever was pulled, the prisoner fell and his feet hit the ground. The way a hanging is supposed to work, your feet do not hit the ground, but your neck snaps and death occurs quickly. However, in this case, three guards had to pull the prisoner up and he strangled for 14.5 minutes. Despite the press ban, the St. Paul Pioneer Press reported it, and the public outcry resulted in its abolition.

The death penalty is generally reserved for those on the margins of the body of politics. Rep. Ellison pointed out that there are no millionaires on death row. Death row contains poor people, political dissidents, people of color, and those individuals who exist on the margins of society.

The Louisiana death penalty case that Rep. Ellison and Pincus worked on involved a white defendant. This man, although white, was as equally burdened in life as a person of color. Albert Burrell was mentally ill, mentally retarded, and innocent. Albert could not give a strong account of where he was at the time of the crime because of his disabilities. Albert was poor. Rep. Ellison's family is from Louisiana, and in speaking with his family, Ellison learned that Burrell's situation was a story from the other side of the tracks.

The death penalty also has a disproportionate impact on African Americans. The biggest factor is the race of the victim. If a black person kills a white person, he is more likely to end up on death row. Yet, there are less than ten white people who have been sentenced to death for killing black people. Considering the numerous lynchings throughout history, this is a remarkable fact.

Political outsiders are also more likely to get the death penalty. The Rosenbergs, who were not alleged to have killed but to have given secrets to the Russians to the cold war, were executed. Communism back then is similar to what terrorism is today. The story is still open on whether Julius Rosenberg gave secrets to the Russians. However, it is likely that Ethel Rosenberg was innocent, and that the authorities used execution as a means to extract information from her regarding her husband.

The death penalty is reserved for certain people, and that is why it is hard to tinker with this instrumentality of death. Unless we have the perfect racial and economic capital punishment system, there are always going to be vulnerable people. Thus, we should not be killing people.

In the 1970s, the death penalty was found to be unconstitutional and abolished. However, a few years later, it was found to be constitutional under certain circumstances. Ever since its reinstatement, no one has been able to get it just right.

With regard to H.F. 1602, Rep. Ellison stated that there were two important features to the proposed bill. First, the original bill had no proposed constitutional amendment. Rep. Hackbarth's bill as introduced in May 2003 did not call for the voters to decide. Nevertheless, the bill seemed to include the latest criteria to constitute a good death penalty bill. It is important to understand that the bill seemed "canned." It was not something organically grown and created in Minnesota. Rather, it seems it was sent from Washington to Minnesota for introduction. In other words, it was political. Rep. Ellison believes that if there is going to be a debate about the death penalty, it should be as Minnesotans talking about the death penalty in Minnesota. Instead, this seemed like an organized campaign to illuminate the abolitionist states. Not only this bill, but other bills have come through that do not seem to fit the landscape and seem canned from Washington. The second aspect to the death penalty bill is that at the time of its introduction, there was no tragedy. Then, the Dru Sjodin tragedy occurred, and Governor Pawlenty called for the death penalty. This resulted in a backlash by members of his own party, who were not excited about the death penalty, even in Republican circles. Furthermore, the Star Tribune's poll revealed that it probably would not pass. So, Governor Pawlenty used this constitutional amendment plan as a fallback so it would not appear that he was proposing faulty plans.

Rep. Ellison gave an example as to why we should not let the voters decide on this issue. If this goes to voters in November, there's a tragedy in October, then Minnesota will get the death penalty based on emotions, rather than a well-considered, policy debate. Do we let Minnesota pass a law based on inflammatory nature of these events, or "legislation by anecdote?" Rep. Ellison believes not. This idea is as dangerous as the death penalty itself. It relies on the ability to scare or the ability to bring the public to a point of reason. And while we might want to strangle those criminals, we still need to be rational policy-makers.

Right now, the death penalty has already been heard one time in the house. There was no fiscal note available, and it was laid over, or delayed without a vote. No state has figured out how to do the death penalty cheaply. It is expensive because we live in a democracy. We don't lynch people, and we need due process as a protection of a civilized country, so it's expensive. In Florida, for example, it costs several million dollars to execute someone. It is actually cheaper to imprison someone for life than it is to execute his or her.

The death penalty is coming up in the Senate for a hearing on March 24th. Rep. Ellison mentioned that the state capitol is Minnesotans' building—we are permitted to go to hearings and he recommended that we do so. In fact, Minnesotans could testify if they wanted to and join in the debate. Or, Minnesotans could listen to the news for an update or write their legislators a letter.

Will the death penalty pass this year in Minnesota? Rep. Ellison thought passage was unlikely. There was a $4.2 billion deficit last year and a $160 million deficit this year. So, Minnesota would not be able to have something as expensive as the death penalty without eliminating other programs. In the Senate, which is DFL-controlled, the bill would probably not find support. Even amongst Republicans, there are Republican legislators who do not support the death penalty. But these factors do not mean that we will never have the death penalty. If the proponents build enough political impetus to a significant point, something like a tragedy can push it over the edge. Thus, Rep. Ellison concluded, even if it looks like we are going to win, we should never rest, because we don't know what the headlines tomorrow will be, which could determine whether or not Minnesota gets the death penalty.

Speaker biography

Keith Ellison is serving his first term as State Representative from House District 58B, which encompasses near north Minneapolis, the new North Loop area, and a portion of Downtown. Before coming to the legislature, Mr. Ellison practiced law. Mr. Ellison is a 1990 graduate of the University of Minnesota Law School. He practiced with the firm of Linquist & Vennum for the first three years of his career. Thereafter, he led the Legal Rights Center, Inc., as its executive director for five years. After leaving the Legal Rights Center, Mr. Ellison entered private practice with the law firm Hassan & Reed Ltd, where he specialized in trial practice. He maintains his law practice in the new Minneapolis Urban League building on north Plymouth and Penn Avenues.

Minnesota has been an abolitionist state for 93 years. Yet, in December 2003, Governor Tim Pawlenty called for the death penalty to be brought back to Minnesota. This brown bag presentation will provide a critical overview of the proposed amendment to Minnesota's constitution to re-introduce the death penalty in Minnesota. One CLE credit granted.