The U.S. Code doesn’t say traitors would be publicly hanged at high noon

Editor’s note: This story contains graphic descriptions.

It’s been 88 years since the last government-sponsored execution unfolded in the U.S. in a public space, open to anyone who wanted to attend.

But some social media users are claiming traitors to the country could still suffer this gruesome fate of public execution.

"The following is the U.S. penalty for treason," read the text in a March 3 Instagram video before showing a card that read: 

"Title 18 U.S. Code section 2381, which says ‘When in the presence of two witnesses to the same overt act or in an open court of law if you fail to timely move to protect and defend the constitution of the United States and honor your oath of office you are subject to the charge of capital felony treason and upon conviction you will be taken by the posse to the nearest busy intersection and at high noon hung by the neck until dead."

(Screenshot from Instagram)

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We asked several legal experts about this claim; four of them responded and found it baseless. Stuart Banner, death penalty historian and law professor at the University of California, Los Angeles; Carlton Larson, University of California, Davis law professor who specializes in the law of treason; and Eugene Volokh, who’s also a UCLA law professor, told PolitiFact they’ve never heard of such a statute.

"It’s pure invention," said Frank O. Bowman III, a University of Missouri law professor.

Here’s what Title 18 U.S. Code section 2381 actually says:

"Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."

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We also looked at the historical versions of the criminal procedure for treason. The 1925 version of the U.S. Code stipulated the same penalties, plus one other: the person’s real and personal property would be levied on and collected. The 1934, 1940, 1946 versions outlined the same penalties. 

The collection penalty was omitted in the 1952 version because it was "obsolete and repugnant to the more humane policy of modern law which does not impose criminal consequences on the innocent."

Proceeding versions (1958, 1964, 1970, 1976, 1982, 1988) were mostly identical to the current statute, save for minor wording changes.

Although U.S. Code stipulates the death penalty as a punishment for treason, traitors wouldn’t be taken to and hanged at the "nearest busy intersection." Public executions, described in one law journal article as those conducted in the "public squares or commons," have been outlawed in all states. 

States started to prohibit public executions in the 1830s. PolitiFact obtained a copy of a statute passed by the New York legislature in 1835, which restricted executions to the county prison and specified the people who can attend.

Kentucky was the last state to ban public executions. In August 1936, the Daviess County sheriff oversaw the public hanging of Rainey Bethea, a Black man who was convicted of raping a white woman. More than 20,000 people attended, according to The New York Times. Eighteen months later, the state’s governor banned public executions.

Treason is the only crime defined in the Constitution. Article III, Section 3 says:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

This crime is rarely prosecuted. Volokh said of the Instagram’s post claim, "It is not enough to not timely protect and defend the Constitution, or to break one’s oath. To be guilty, one has to actually levy war against the U.S., or intentionally assist their enemies."

According to the Congressional Research Service’s Constitution Annotated, the framers defined treason that way to "prevent the politically powerful from escalating ordinary partisan disputes into capital charges of treason."

"‘Capital felony treason’ is gibberish, since the Constitution (and English law) distinguished treason from felony more broadly (very different punishments)," Larson said. "And ‘fail to timely move to protect and defend’ is devoid of any substantive content."

We rate the claim that people convicted of treason would be "taken by the posse to the nearest busy intersection and at high noon hung by the neck until dead" False.

PolitiFact News Researcher Caryn Baird contributed to this report.