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Drugs, Guns, or Life in Prison

"Those who are executed in this country are casualties of an unequal system of justice," said John Holdridge of the ACLU in response to the state of Utah's 2010 firing squad execution of  Ronnie Lee Gardner. (Photo: codepinkphoenix/cc/flickr)

Hanging was the worst use a man could be put to.
— Sir Henry Wotton, The Disparity Between Buckinham and Essex

Herewith a study of the activities of two state legislatures that have dealt with identical problems in quite different ways. The two legislatures are in the states of Utah and Nebraska and the reader may decide which of the two is the more enlightened. The problem both states hope to address is that posed by the unavailability of drugs with which to rid society of the unwanted, after the necessary legal steps have been taken to demonstrate that we are members of a civilized society and that the object of the actions taken is not and should, therefore, be dealt with.

The problem was demonstrated by Clayton Lockett, formerly of Oklahoma. The execution of Mr. Lockett was unpleasant for both the onlookers and Mr. Lockett. This was because the drugs the executioners had been using to execute the condemned were unavailable on the occasion of Mr. Lockett’s execution. The Oklahoma executioners were an imaginative group and used their creative powers to come up with their own death dealing drug concoction. When it was given to Mr. Lockett, however, instead of dying peacefully as expected, he writhed in what appeared to be great pain and only died after 45 minutes. Furthermore, the cause of death was a heart attack rather than the drugs. In addition to inflicting pain on Mr. Lockett, the drawn out execution pained onlookers who found his 45 minutes of writhing unpleasant to watch and, in all likelihood, disruptive of their schedules since the entire event had only been expected to last a few minutes. But this column is not about Oklahoma but about how Utah and Nebraska have taken completely different steps to address the problem created by the unavailability of death dealing drugs.

Utah’s senate has reintroduced the execution method it favored until it began using lethal drugs to rid itself of the unwanted-the firing squad. A bill signed by Utah Governor, Gary Herbert, on March 23, 2015, provides: “The method of execution for the defendant is the firing squad if the sentencing court determines the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection 30 or more days prior to the date specified.” Utah last used the firing squad on June 18, 2010 to rid itself of Ronnie Lee. It will, if history is a guide, surely have the opportunity to avail itself of this method of dealing death in the future. Another, and quite different approach to address the drug shortage, comes from Nebraska.


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Like Utah, Nebraska has been concerned with the difficulty of obtaining the necessary drugs to carry out executions. It is concerned even though Nebraska has executed only three people since 1976 and all died while seated in the electric chair. In 2011 the Nebraska Supreme Court said the use of the electric chair as a means of execution constituted cruel and unusual punishment and could no longer be used in executions.

Although Nebraska has not had reason to execute anyone since the Court issued its ruling, the legislature is far sighted and decided to confront the issue of the unavailability of death dealing drugs head-on. It could have followed Utah’s steps and adopted the firing squad. It might have even taken an historical approach to the procedure and introduced hanging as a means of dispatching those who were found by a jury of their peers to be worthy of the punishment. Instead, the Nebraska legislature took a very different approach. It passed a bill substituting life in prison for the death penalty.

Although life in prison seems like a more civilized approach to the issue than that taken by Utah, not everyone is pleased. Nebraska Governor, Pete Ricketts has said he will veto the bill. He says killing people provides an important tool for “public safety and our prosecutors.” He went on to say: “Death row inmates have earned the penalty they received. They do not deserve the luxury of living on the taxpayer dime for a lifetime.” He is, of course, overlooking the costs of the endless appeals that follow the imposition of the death penalty. He also ignores the repeated executions around the country of those who are posthumously declared innocent of the crime for which they were executed. If the governor vetoes the repeal of the death penalty there may be enough votes to override his veto. If so, Nebraska would join the 18 other states in which the death penalty has been eliminated.

It seems odd that a state as closely identified with its homegrown religion as Utah would be so quick to insure it is not found wanting when it comes time to rid itself of the unwanted. It could just as easily have opted for the approach taken by Nebraska and the other 18 states. Utah legislators might say that Nebraska took the easy way out. Others might say it took the humane way out. Readers may decide for themselves.

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at For political commentary see his web page at

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