Invitation to a Hanging

by CHRISTOPHER BRAUCHLI

“Hanging was the worst use a man could be put to.”

Sir Henry Wotton, The Disparity Between Buckingham and Essex [1651]

There is a lot to be said for hanging.  There is an unlimited supply of rope and its sale poses no moral dilemma problem for the seller. Best of all, the executioner seeking to buy rope for a hanging does not have to engage in the sort of felonious conduct in which a recently filed lawsuit suggests Texas execution officials were forced to engage in order to obtain a death dealing drug.  That lawsuit reminds us again how annoyingly difficult it can be to carry out a death sentence and the extent to which upstanding citizens like officials in the Texas Department of Criminal Justice are forced to go in order to carry out their assigned tasks.  But first a  brief history.

Foreign manufacturers of some of the essential drugs that are used in executions have refused to permit their products to enter the United States if the use for the drugs is to aid in an execution.  In October 2013 the state of Missouri had to postpone an execution because the European manufacturer of propofol, the anesthetic the state planned to use to make the process more pleasant for the participant, said it would no longer ship propofol to this country if it were used in executions. Since propofol is used for valid medical purposes as well as assisting in executions, the governor of Missouri stayed the execution. (Missouri, the “show me” state has creatively come up with a different product to enable executions to proceed.)  On August 1, 2013, the Texas Department of Criminal Justice announced its remaining supply of pentobarbital, the drug it uses in lethal injections, would run out in September and it did not know where to get more.  That is because Lundbeck Inc., a Danish company, the drug’s manufacturer has said it will not ship any of the drug to states that intend to use the drugs in carrying out a death sentence.

Texas has conducted more executions than any other state since the U.S. Supreme Court breathed new life into the death penalty on August 6, 1976.  Texas did not get to be number one by sitting back and letting minor obstacles interfere with executions.  Mindful of its obligations to promptly carry out death sentences when imposed, it did what any self-respecting executioner would do when confronted with the unavailability of a needed ingredient.     According to CNN, in October 2013 a civil complaint was filed in Texas on behalf of prison inmates facing the death penalty and that complaint describes in considerable detail the activities of the Texas officials.  According to the CNN report the complaint alleges that state correction officials falsified a prescription for pentobarbital.  They said the patient for whom the drug was required was James Jones, who is the warden of the Huntsville Unit where executions take place and it is a certainty that he was not personally in need of the drug.  The request for the prescription also instructed the pharmacy that the drugs were for the Huntsville unit Hospital, a hospital that has not been in existence for 30 years.  Of course the CNN report was simply describing what the plaintiffs were alleging.  The Texas prison officials declined to comment on its truth or falsity. According to the CNN report when the pharmacy learned of the criminal conduct of the state correction officials (assuming lying in order to get drugs is a crime) it cancelled the prescription.

One has to feel sorry for the Texas officials.  Although they were behaving criminally (if they in fact did what was alleged) they were only trying to do what they are legally required to do. If Texas and other states that are having such difficult getting the needed drugs would return to hanging executions could once again enjoy the simplicity of years gone by.

At present there are three states that permit hanging although in two of them its use is severely limited.  In Delaware someone convicted of a death penalty eligible offense is entitled to be hanged only if the offense bestowing that benefit took place before June 13, 1986.  There is no one on Delaware’s death row who qualifies and, indeed, Delaware has dismantled its gallows assuming no one in the future will be entitled to this treatment.  Washington State gives inmates a choice. Lethal injection is the state’s first choice but if it is not the prospective recipient’s first choice, he or she can request a hanging.  New Hampshire permits hanging only if a lethal injection cannot be given.  Although there are currently no inmates in New Hampshire awaiting execution, should one appear and the required drug not be available, hanging would be the prescribed punishment.

There are those who will take the suggestion that we return to hanging as the principal means of execution as proof that the writer fails to appreciate that the lengths that states go to obtain death dealing drugs is proof of how civilized they are.  Readers may decide whether the actions of those states are more civilized than getting a rope and finding a tree.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.

Christopher Brauchli is an attorney in Boulder, Colorado.

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