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Abstract

“Wisconsin is getting a reputation for lynching.” So reported the Manitowoc Pilot in 1881, after an enraged mob stormed a courtroom in Pepin County and, in the midst of legal proceedings, brutally lynched Ed Maxwell, who had been charged with killing two law enforcement officers. Between 1848 and 1910, Wisconsin had dozens of similar lynching attempts, undertaken by hundreds of otherwise law-abiding citizens and witnessed by thousands more. Nineteen resulted in violent death. Yet with only one exception, an outlier involving a battered wife, no one was ever criminally punished for engaging in lynchings in Wisconsin. This record is even more remarkable given the state’s proud history of prohibiting capital punishment as a legal penalty.

From a legal perspective, the lack of accountability in Wisconsin for lynching activity can be traced to three main factors. First, the state’s constitution requires that local prosecutors, and only local prosecutors, determine whether criminal charges should be issued. This restriction meant that the decision to criminally pursue lynchers rested solely with a person whose election to office came from the same local community that often supported, or at least condoned, the lynching in question. Second, the state's constitutional embodiment of the principle of jury nullification, the belief that the application of laws passed by a larger democratic body (Congress, state legislatures) could properly be ignored by a local community, acting through a jury, in any given case. Thus, even if a local prosecutor was willing to pursue criminal lynching charges, those charges could be and often were rejected by a jury, not because of difficulties of proof, but rather because the lynched victim was believed to have received the penalty that he or she deserved. Finally, during the time period when the majority of the lynchings took place, the Wisconsin courts created disincentives for codefendants to cooperate and “turn state’s evidence” against their fellow lynchers. The Wisconsin Supreme Court in 1877 chastised prosecutors who had pursued such plea bargains and called such deals “a fraud upon the court and an obstruction of public justice.” Combined, these factors created significant legal hurdles for law enforcement officials seeking to overcome community reluctance and issue criminal charges against those involved in lynchings. For the hundreds of people in Wisconsin who directly participated in lynchings between 1848 and 1910, that meant they could, and did, act with legal impunity.

In this Article, the author reviews the history of lynchings in Wisconsin, as well as the concurrent backdrop where capital punishment was prohibited as a legal remedy. The Article then examines from a legal perspective how lynching prosecutions were hindered by provisions of the state constitution and by rulings of the Wisconsin Supreme Court, all resulting in a disturbing history in which lynching activity went largely unpunished.

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