1891: Four to save the electric chair 1943: Not Halina Birenbaum, thanks to a shortage of gas

1938: Anthony Chebatoris, in death penalty-free Michigan

July 8th, 2011 Andrew Gustafson

This post was contributed by Andrew Gustafson, a writer and cartographer based in Brooklyn, NY. Andrew’s work can be found on his website, and he regularly blogs about New York City history and culture for Urban Oyster Tours.

On this date in 1938, Anthony Chebatoris was hanged at the federal prison in Milan, Michigan, becoming the only person executed in Michigan since it gained statehood in 1837.

Chebatoris and an accomplice, Jack Gracy, rolled into Midland, Michigan on September 29, 1937, with the intention to rob the Chemical State Bank. They never did get their hands on the cash, and only one of them would leave the town alive, though with a proverbial noose dangling from his neck. The two men, armed with a pistol and a sawed-off shotgun, entered the bank and approached the bank manager, Clarence Macomber, with guns drawn. In the ensuing scuffle, Chebatoris shot Macomber and another bank employee, Paul Bywater. Upon hearing the shots, Frank Hardy, a dentist whose office was next to the bank, grabbed the loaded deer rifle he kept handy and went to the window to see what the commotion was about. As Chebatoris and Gacy abandoned the botched robbery empty-handed, Hardy began firing at the fleeing robbers, hitting Chebatoris in the arm and causing him to crash the getaway car he was driving. As the wounded men looked for another escape route, Chebatoris spotted a uniformed truck driver named Henry Porter, whom he mistook for a police officer, and shot him. The men then tried to hijack a truck to make their escape, but as Gacy attempted to climb into the cab, the sharpshooter Hardy shot him in the head from 150 yards away, killing him instantly.* Chebatoris took off on foot and was apprehended a short distance away, exhausted and bleeding.

Chebatoris would survive his injuries, as would the bank employees Macomber and Bywater. But the innocent bystander Henry Porter put our convict on the road to the gallows: after two weeks in the hospital, Porter would succumb to his injuries, and murder would be added to the charges against the surviving bank robber. Michigan had outlawed the death penalty for murder in 1846, becoming the first U.S. state to do so. But Chebatoris found himself subject to a legal system that had been changed by New Deal politics and the public’s panic over escalating violence and criminality. Federal prosecutors took on the case, under the authority of the National Bank Robbery Act of 1934, which was passed in response to the rash of bank holdups across the country. The law gave the federal government the authority to prosecute anyone involved in the robbery of a bank that was a member of the Federal Reserve System or the newly created Federal Deposit Insurance Corporation. Unluckily for Chebatoris, Chemical State Bank was a member of both.

With a mountain of evidence against him, Chebatoris was easily convicted, and on November 30, 1937, he was sentenced to death by federal judge Arthur Tuttle. The case set off a political controversy in Michigan, one that would pit an anti-death-penalty governor against federal judges and prosecutors who wanted the sentence passed down and carried out in the state. Under the federal statute, federal death sentences could only be carried out in states that had their own death penalty. While Michigan had long abolished capital punishment for murder and other crimes, it still kept an obscure law on the books allowing execution for treason (which has never been exercised, as it is unclear how one would commit treason against the state of Michigan). This loophole allowed the federal capital prosecution and execution to proceed within the confines of the staunchly abolitionist state.

In response to the decision, Michigan Governor Frank Murphy said, “There hasn’t been a hanging in Michigan for 108 years. If this one is carried out in Michigan, it will be like turning back the clock on civilization.” Illinois, which had its own electric chair, offered to finish off Chebatoris, but Judge Tuttle ordered that the execution should proceed in Michigan, noting, “The just verdict having been returned, the law was mandatory in the three respects, namely that the penalty should be death, that it should be hanging, and that it should be within the state of Michigan. These last two requirements resulted from the fact that Michigan has one statute providing for the death penalty by hanging. If the sentence had been different in any one of these respects, it would have been unlawful. I have neither the power nor the inclination to change the sentence.”

Chebatoris was transferred from the Saginaw County Jail, where he had been held throughout his trial, to the federal prison in Milan. At 5 a.m. on July 8, 1938, he was brought to the gallows, and before 23 witnesses, including an inebriated hangman named Phil Hanna, he was hanged. In the middle of the night before the execution, Hanna had arrived at the prison demanding that his three drunken friends be admitted to the hanging. After an argument with the warden and a call to the director of the Federal Bureau of Prisons, Hanna was allowed to proceed with execution, and the warden acceded to his demands (though at the time of the execution, the warden barred the three friends from the proceedings, knowing that the room was too dark, and Hanna too drunk, for him to notice their absence).**

Chebatoris’ execution was both a unique event and a bellwether for things to come in the federal death penalty system. Since 1927, he is the only person to be executed for a murder committed in a state that does not have its own death penalty statute. After World War II, executions, both federal and state, went into a steep decline across the United States, culminating in the 1972 Supreme Court decision Furman v. Georgia, which struck down every capital punishment statute in the land. Four years later, the death penalty was revived in Gregg v. Georgia, and it took barely six months for states to resume executions. The federal government was slower, however, and the first post-Furman federal death penalty statute did not appear until 1988. Since that date, however, we have seen the steady expansion of the federal death penalty, building on the precedents set by the National Bank Robbery Act. Rather than targeting bank robberies, the federal government has used the death penalty to take aim at other perceived scourges, employing it is a weapon in the various domestic “wars” on crime, drugs, and terrorism.

In the past twenty years, the federal death penalty has been transformed from a seldom-used punishment for pirates and crimes committed in the territories to an expansive weapon that can be imposed in a wide range of jurisdictions, leading the Criminal Defense Network to conclude that “virtually every homicide occurring within federal jurisdiction is now death-eligible.”† The greatest expansion of the federal death penalty came with the 1994 Violent Crime Control and Law Enforcement Act, which greatly expanded federal jurisdiction and authorized the death penalty for nearly 60 different crimes. And the reach of the federal death penalty has continued to expand, even into states like Michigan that have rejected capital punishment.

There are currently 58 people sitting on the federal death row, nine of whom committed their crimes in states that either do not have a constitutionally valid state death penalty statute or have active moratoriums on the death penalty.‡ Interestingly, all of those nine were sentenced to death during the tenures of Attorneys General John Ashcroft and Alberto Gonzalez, and their decisions to pursue capital prosecutions marked a departure from the actions of their predecessors. Early in his term, John Ashcroft revised the U.S. Attorneys Manual and removed language about the Department of Justice’s policy towards seeking the death penalty in states that did not have their own capital punishment statutes. Previously the manual stated that in these states, “penalty-driven decisions to file federal charges are inappropriate.” That language was removed, and presumably this opened the door for the increase in prosecutions, convictions, and death sentences handed out in federal districts located within abolitionist states. Since Chebatoris’ execution, no one who falls into this category has been executed, and current Attorney General Eric Holder has signaled a return to the earlier practices, meaning the federal government will be less inclined to pursue these kinds of cases. Nevertheless, it is likely that at least one of these nine will eventually be executed.

When that happens, Anthony Chebatoris will no longer be a solitary historical footnote.

* Hardy was a hero, but he is not nearly as celebrated as another bank robbery foiler, Northfield, Minnesota’s Joseph Lee Hayward, who is remembered annually at the town’s “Defeat of Jesse James Days.” Perhaps Midland could build its own tourist attraction around Hardy?

** For a detailed account of the case of Anthony Chebatoris, read Aaron Veselenak’s article in the May/June 1998 issue of Michigan History Magazine, “The Execution of Anthony Chebatoris.”

† From Burr, Dick, David Bruck and Kevin McNally (2009). “An Overview of the Federal Death Penalty Process.” Capital Defense Network.

‡ These death row inmates are: Carlos Caro (WV), Donald Fell (VT), Marvin Gabrion (MI), Dustin Honken and Angela Johnson (IA), Ronald Mikos (IL), Alfonso Rodriguez (ND), Gary Sampson (MA), and Kenneth Lighty (MD). For a description of their cases, visit the Death Penalty Information Center. All are held in the Federal Correctional Complex in Terre Haute, IN, with the exception of Gary Sampson, who is being held in New Hampshire. For more information on these cases, visit the Death Penalty Information Center.

On this day..

Entry Filed under: 20th Century,Capital Punishment,Common Criminals,Crime,Death Penalty,Execution,Guest Writers,Hanged,History,Michigan,Milestones,Murder,Notable Jurisprudence,Other Voices,Pelf,Theft,U.S. Federal,USA

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5 thoughts on “1938: Anthony Chebatoris, in death penalty-free Michigan”

  1. Ed says:

    Marvin Charles Gabrion is on death row at Terre Haute for a murder comitted in Michigan.

  2. A few odd notes: first, the Michigan Constitution of 1963 excluded the death penalty for any offense, thus abolishing that odd treason provision left in place (at least in theory) after abolition of the death penalty for murder in 1846.

    Secondly, as stated in the article, the 1988 federal death penalty legislation may be the first currently well-known statute in this area since the landmark decision in _Furman v. Georgia_ (1972) overturning all then-existing state and federal capital punishment laws. However, an early and maybe not so well known attempt at reintroducing the death penalty post-_Furman_ was the federal Antihijacking Act of 1974 (Public Law 93-366), aimed at air piracy causing death. President Nixon and Congress drew up this statute without the benefit of the future decision in _Gregg v. Georgia_ and companion cases (1976) finding the death penalty constitutional in certain cases and tracing out some parameters for valid statutes. However, the Antihijacking Act of 1974 may meet some essentials of _Gregg_: limitation of the death penalty to cases of hijacking involving a death where one or more listed aggravating factors are present; and providing for consideration of mitigating factors that may call for a sentence of less than death. How the death penalty might be sought in relevant federal cases involving hijackings committed between 1974 and passage of the Federal Death Penalty Act of 1994 with its more developed procedures for the penalty trial was a topic addressed in the USA PATRIOT Improvement and Reauthorization Act of 2006, but I’m not sure if any death sentences have actually resulted. There could be ex post facto issues, for example.

    Also, since 2011 when this article was written, the federal death sentence imposed on Dzhokhar Tsarnaev in Boston (2015) for the killings in connection with the Boston Marathon bombings of 15 April 2013 has again raised the issue of the enforcement of such laws on a State that has rejected capital punishment — here Massachusetts, where the state death penalty was struck down in 1984 and never reenacted (despite an attempt by then-Governor and future presidential candidate Mitt Romney). One issue is whether a federal jury selected based on willingness to apply the death penalty can really represent “the conscience of the community” in such a jurisdiction. In the Commonwealth of Puerto Rico, where the death penalty is unconstitutional, attempts to appy it under federal law (for example, during the Obama Administration) have been the focus of much Puerto Rican protest and resistance.

  3. al says:

    Iowa did not abolish capital punishment on the state level until 1965, two years following the federal execution of Victor Feguer at Iowa State Penitentiary in Fort Madison.

  4. Ben says:

    The last execution in Iowa was a federal job done against the will of our Governor. I think that the Death Penalty had been repealed, but this repeal hadn’t gone into effect yet, or something like that. JFK denied the criminal’s clemency plea, and Iowa’s anti-death penalty Governor was powerless to stop it.

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