A Criminal Enterprise

Williams v. Louisiana – Cert Conference on May 13th

Posted in Cases, News by Bidish J. Sarma on May 6, 2010

The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana.  Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply.  The Court is set to meet on the petition on May 13th. 

Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race.   But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish.  The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).

The State’s Brief in Opposition can be found here: State’s Brief on Cert 

Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL

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Cert Petition on Proportionality Review in Louisiana

Posted in Uncategorized by Bidish J. Sarma on March 16, 2010

On March 10, our office filed a cert petition in the case Williams v. Louisiana.  The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness.  The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”

The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.

You can view the petition in its entirety right here: Cert Petition FINAL

Louisiana Executes Gerald Bordelon

Posted in Cases, News by Bidish J. Sarma on January 8, 2010

The State of Louisiana took Gerald Bordelon’s life yesterday.  Mr. Bordelon volunteered for execution.  After a jury convicted him of first-degree murder at the guilt phase of his capital murder trial, he asked his trial attorneys not to present any mitigating circumstances at the penalty phase – the phase where the jury had to decide whether the convicted murderer would be executed, or would serve a life-without-parole sentence.  After the jury sentenced him to death by execution, Mr. Bordelon waived his right to challenge that sentence in front of the Louisiana Supreme Court.  The Louisiana Supreme Court nonetheless issued an opinion in his case that ultimately dismissed the appeal.  The Court indicated that it was legally obligated to decide whether Bordelon was competent to waive his appeals and also to determine if his sentence was proportionate.  In October, the Court cleared the path for today’s execution, and ruled that Mr. Bordelon is competent to waive his rights to an appeal, and that the death sentence in this case is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Generally, it isn’t uncommon for death-sentenced defendants to “volunteer” for execution by waiving their appeals.  According to the NAACP Legal Defense Fund, roughly 12% of defendants waive appellate review.  Yet, Bordelon was the first person to successfully volunteer in Louisiana since the death penalty was reinstated here in 1976.  And, while every case in which someone “volunteers” presents complex legal, ethical, moral, and philosophical questions, Gerald Bordelon’s case is worth thinking about carefully.

From my perspective, Mr. Bordelon’s execution is unsettling because it was not the product of an adversarial process, and the American legal system requires that final adjudicated judgments be informed by the zealous advocacy of lawyers in adversarial positions.  Instead, Mr. Bordelon’s death was the result of multiple, compounded perversions of our criminal justice system.   

First, the jury that sentenced Mr. Bordelon to death did not hear any mitigating circumstances.  According to the Louisiana Supreme Court, “[t]he penalty phase . . . began with a waiver by defendant of his right to present mitigating evidence . . . .”  Without mitigating evidence, the jurors had incomplete information about the person the State implored them to condemn.  Not everyone who commits a first-degree murder should be executed.  Indeed, the United States Supreme Court has held that some individuals cannot be constitutionally executed.  Mitigating evidence must be presented in order for the jury to make an accurate assessment of whether this particular defendant deserves the harshest penalty available.  Was Bordelon mentally ill?  Did he suffer abuse throughout his childhood?  Would he be able to live peacefully in a controlled environment?  Did he feel remorse for the crime?  These and other critical questions were left unanswered at trial.  The penalty phase did not pit two opposing parties against each other in the way we all learn how American trials are supposed to unfold.  The jurors sat and watched, as the State’s lawyers were not challenged when they asked the jury to order Bordelon’s execution.  Not surprisingly, the jury returned a death sentence.

Second, the Louisiana Supreme Court found that the defendant was competent to waive his appeals even though no party took the position that he may not be competent.  To determine competence, the Louisiana Supreme Court remanded the case and asked a sanity commission to make a finding upon which the Court could later rely.  The Court made the work of this sanity commission sound grave: “When a defendant asserts that he is eligible for execution because he has terminated all further legal proceedings, the consequences of an erroneous determination of his competency to make that decision are so severe that the record of the proceedings conducted on the sanity commission’s findings must show by clear and convincing evidence that he has the capacity to make a knowing, intelligent, and voluntary waiver of his right to appellate review of his capital conviction and sentence of death.”  What the Court did not say is that these commissions do not typically produce conclusions in a non-adversarial setting.  When neither party provided reasons to question the inmate’s competence, the work of the commission was basically done before it even really began.  I don’t suggest here that Mr. Bordelon was not competent to waive his appeals (although the Supreme Court made the competency standard sound a whole lot more difficult to meet than it really is), but point out that the entire process by which this execution was approved does not comport with our system’s purported notion of justice.

Third, the Court’s comparative proportionality review is far from meaningful.  In the Bordelon opinion, the Louisiana Supreme Court insisted that it had an independent duty to conduct its “Rule 28 Review” of the death sentence “to determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”  As we’ve established here, the Court has not conducted a serious proportionality review in roughly three decades.  And, the way that Louisiana Supreme Court Rule 28 is written and the way that records are kept in Louisiana, the Court simply cannot make an effective comparative proportionality review without the full adversarial participation of both parties.  In Bordelon, the Court yet again: only truly evaluated cases that resulted in death sentences (and not those that came back with life-or-less sentences); cherry-picked death sentences from other jurisdictions without looking at the life-or-less cases from those jurisdictions; and failed to look into the mitigating circumstances present or absent in those other capital cases.  It is unclear whether the Court enforced the Rule 28 command that “[d]efense counsel shall file a [sentence review] memorandum on behalf of the defendant . . . .”  Moreover, the Court never identified or reviewed any mitigating circumstances because none were presented at trial.  How could the Court meaningfully compare “considering both the crime and the defendant” when it had utterly incomplete mitigating information about the defendant in this case?  Perhaps an intellectually honest and rigorous proportionality review would have revealed that Mr. Bordelon’s sentence was proportionate.  However, the breakdown of the adversarial process and the Court’s unwillingness to look beyond what was presented to it made a meaningful proportionality review impossible.

One could certainly argue that Mr. Bordelon was rightly allowed to waive his appeals.  And, maybe that’s true.  Even if the system functioned the way it was designed to in this case, Gerald Bordelon may still have been executed today (in accordance with his wishes).  However, the system did not work in the manner intended, and that is what troubles me.  The judges and lawyers involved ignored fundamental legal principles to facilitate the result that all interested parties apparently wanted in the end.  When we sacrifice principle for expediency, we undermine the very institutions which stand upon those principles.  Once again, the death penalty proves to be arbitrary and unprincipled above all else.

Do People Actually Care If the State Executes Innocent Defendants?

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

In October, Gallup released figures regarding its most recent poll on the death penalty.  The report is available on the Death Penalty Information Center website here.

The most cited figures from Gallup reflect two continuing trends: (1) “65% of Americans continue to support the use of the death penalty for persons convicted of murder (show[ing] little change over the last six years);” and (2) when posed with life imprisonment as an alternative to the death penalty for convicted murderers, “47% said they preferred the death penalty (48% favored life imprisonment).”  While these numbers are obviously important to people who care about the death penalty, I took a particular interest in a somewhat surprising and perverse related Gallup finding.

According to the Poll, “59% of Americans agree[] that within the last five years, ‘a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with.’”  As the report points out:

However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.

In August, the Supreme Court of the United States granted an original writ for habeas corpus and ordered a District Court to hold an evidentiary hearing in Troy Davis’s innocence case.  Justice Scalia, joined by Justice Thomas dissented from the order.  In his dissent, Scalia suggested that the U.S. Constitution may not actually prohibit the execution of an innocent individual:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Although his statement about the Court’s precedent is legally accurate, that Scalia might not find the execution of an innocent person constitutionally objectionable seemed to shock the consciousness of many members of the legal community (including Alan Dershowitz, Dahlia Lithwick, and other observers).

But, in this instance, the views of those offended in the legal profession may not accurately reflect the views of people in society at large.  Although I thought Scalia’s comments would generate more public outrage on a wide scale, people seemed relatively unmoved.  Could it really be that people who believe that the State executes innocent people support the death penalty nonetheless?  How could one simultaneously hold both beliefs?

Whatever the explanation, the Gallup numbers present anti-death penalty advocates with a serious dilemma.  Many anti-death penalty folks believed that a public understanding that the system fails to ensure that people who are executed were actually guilty of the crime for which they have been convicted would lead to a decline in support for capital punishment.  The Gallup numbers undercut the force of this assumption.  Indeed, the controversy surrounding Texas’s execution of Cameron Todd Willingham – though serious – has not yet generated a societal backlash against the death penalty.  The numbers also partly rebut the Marshall Hypothesis.  Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process.  The Gallup poll suggests that he may have been too hopeful.

All things considered, the recent Gallup poll may leave one to wonder what can be done… As always, I look for suggestions…

The Right Wing Recognizes the Need for De-Criminalization

Posted in Uncategorized by Bidish J. Sarma on November 24, 2009

I was pleased to read this piece, entitled “Right and Left Join Forces on Criminal Justice” by Adam Liptak in the New York Times today. The article documents an important trend in the politics that govern the criminal justice system: many right-wing politicians and activists have taken a position against over-criminalization. Liptak effectively explains the varying conservative interests that have come together under the “anti-criminalization” banner:

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states. . . . Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

This trend stands in sharp contrast to the “tough-on-crime” conservative line that emerged in the 1980s and swept over the country. The realpolitik need for politicians to support tougher criminal sanctions and the death penalty became self-evident in the past two decades. Criminal punishment, for many years, looked like a one-way ratchet (see this post, explaining “just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences . . . will barely create a political ripple.”): sentences could only become harsher and the scope of behavior considered criminal could only expand. But, times have apparently changed. For now.

Ideologically, it makes sense that individuals skeptical of government power should hesitate to entrust life and liberty to the same State that they believe is incompetent to administer social welfare programs, regulate the economy, and efficiently tax its citizens. If conservatives harbored such doubts about the government, why did they so willingly give the federal and state government greater power in the criminal context? Why did they support more expansive criminal laws and harsher criminal sentences? Why did they profess such unyielding confidence that the government protects the individual’s right to a fair trial, and does not wrongfully convict and execute innocent people? The simple answer: political expediency.

I firmly believe that the current conservative alignment with liberal thinking on criminal justice issues is a temporary marriage of political convenience. But, it represents an important opportunity to correct some of the harm that has been done in the past 30 years. So long as the economy is a shambles, right-wing politicians can point to overcrowded prisons, burgeoning criminal court dockets, and massive government deficits and say – “see, we need to try something different.”

The Times article indicates that some conservatives have declared the shift in viewpoint to be fundamental. For example:

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

Though I wish the shift was truly ideological in nature – as Meese suggests it is – this statement strikes me as nothing more than political posturing. Now is an opportune time to oppose “big government,” and the conservatives know it. Certainly some ideologues will continue to sing the same tune even if the economy rebounds or anti-crime legislation becomes politically expedient again. However, the emerging coalition is realistically a fragile one. I certainly hope that we make progress now.

As far as the death penalty is concerned, I am encouraged by the state legislatures that have sought to cut costs by eliminating capital punishment or limiting the circumstances in which it can be sought. My hope is that we can make enough progress to signal to the Supreme Court that our “standards of decency” have evolved as far as the Eighth Amendment is concerned, and that the perverse institution known as the death penalty will be done away with forever. Though anti-death penalty advocates must first win the battle in the states, those victories are not permanent; instead, they are subject to the will and whims of political opportunism. The fight can only end once-and-for-all in a court of law. Meanwhile, advocates of change in the criminal justice system should seize this moment to push forth the policies that will shrink government budgets, encourage rehabilitation and re-integration, and decrease criminalization.

What Does the Constitution’s Text Say About Juvenile Life Without Parole Sentences?

Posted in Cases, News by Bidish J. Sarma on November 10, 2009

Yesterday, the much-awaited and highly-anticipated oral arguments in Sullivan and Graham took place at the Supreme Court.  The transcripts of those arguments are available here and here.

Though the Justices focused much of their attention on the arbitrariness that line-drawing inherently entails (as well as some procedural problems presented in Sullivan), little attention was given to the text of the Eighth Amendment.  Professor Berman at Setencing Law and Policy has this timely post on his blog.  I wanted to share a sizable portion of it as food for thought:

I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard.  In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape.  For a textualist, the question would seem to be whether Joe Sullivan’s punishment under these circumstances is “cruel and unusual.”  

Part two of the textual analysis seems easy: Joe Sullivan’s sentence is surely “unusual.”  Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history.  Because the constitutional text references “unusual” (as opposed to “unique”) punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan’s sentence satisfies the second prong of the Constitution’s punishment prohibition.

The claim the Joe Sullivan’s sentence is also “cruel” could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults.  Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more “cruel” than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts.  It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

Juvenile Life Without Parole Cases Argued Today

Posted in Cases, News by Bidish J. Sarma on November 9, 2009

This morning, the Supreme Court heard oral arguments in Graham v. Florida and Sullivan v. Florida.  These cases have received lots of attention in the media.  Several articles, op-eds, and editorials are linked to on this Blog’s Twitter sidebar.

Oral argument transcripts should be available later today, and we will certainly review them and provide our own impressions.  In the meantime, I wanted to share something from an Atlanta Journal & Constitution Op-Ed that struck me as fairly powerful:

What is striking about these cases, Sullivan v. Florida and Graham v. Florida, is they entail the permanent denial of freedom for juveniles who, though they committed serious crimes, did not commit homicides. Such sentences for juveniles express more than just the view that these children are beyond rehabilitation. In effect, they are a societal admission that we do not believe we are capable of teaching children to do better. When we sentence a 13-year-old or 17-year-old to life in prison without any chance of parole, we not only convey our views on the child’s actions, we also make a powerful statement about ourselves. Such a penalty, when given to a child, says we do not believe that child can ever change. And because it is our job as adults to mentor children, we are conceding that we don’t have confidence as a society that we will provide the necessary guidance to ensure that child becomes a productive member of society. Why do we have such little faith in ourselves, and our children?

For a look at some of the arguments at play, check out our earlier posts on the subject here and here.

How to Force a Plea? Life Sentences for Juveniles . . . .

Posted in Cases by Bidish J. Sarma on October 7, 2009

As I read and re-read the numerous articles and op-eds about the Supreme Court cases that challenge the constitutionality of juvenile life-without-parole sentences (JLWOP), I inevitably wonder why prosecutors defend the availability of such a harsh punishment.  I wonder this because such sentences turn out to be extraordinarily rare.  As this LA Times opinion piece points out,

“The extreme rarity with which sentences of life in prison without parole are imposed on juveniles — particularly younger juveniles — shows that this punishment is out of step with American values and society.  In the United States, only Joe Sullivan in Florida is serving a life-without-parole sentence for a non-homicide offense, committed at 13. That qualifies as ‘unusual’ under any definition of the word.”

Why are JLWOP sentences so rare?  There are a few potential explanations.  The sentence’s rarity may demonstrate that juries are unwilling to convict juveniles of crimes that subject them to such a severe penalty.  These outcomes could also be rare because juveniles commit few offenses that open up the possibility of a life sentence (which would reflect that the legislature drafted the criminal law to prescribe JLWOP in a limited number of cases).  However, given the vigor with which prosecutors have defended the availability of the punishment, I think another explanation might better capture the on-the-ground reality.

Prosecutors have broadly supported JLWOP.  As this Wall Street Journal piece notes, “The National District Attorneys Association, in a friend of the court brief, says that “life without parole for a juvenile may well be ‘unusual’…but permanent incarceration for the most violent, hardened juvenile offenders is by no means ‘cruel’ — especially by comparison to the harm such offenders could inflict on the public” if someday they could seek release on parole.”

The question is: Why have the district attorneys staked out this position?  It seems strange that publicly elected officials display such a strong commitment to a penalty that juries rarely find appropriate.  Perhaps there is something to be said about keeping the option open for the very worst crimes.  But, their support for JLWOP seems even stranger when you consider how JLWOP is viewed in the international context: “No country other than the United States incarcerates children for life without parole. We were the lone “no” vote against the 2006 U.N. General Assembly resolution calling on all nations to abolish such life sentences. Somalia is the only other nation that has not ratified Article 37 of the U.N. Convention of the Rights of the Child, prohibiting juvenile life-without-parole sentences.”

I believe prosecutors want to keep JLWOP on the table because it represents the ultimate power piece in plea bargaining negotiations.  Equipped with the ability to hold the possibility of JLWOP over juveniles’ heads, prosecutors make their jobs easier – pressuring children into making plea agreements and avoiding the costs associated with trials.  Though expedience in the criminal justice system is not necessarily a vice, it seems unfair when you imagine a prosecutor sitting across the table from a 13 year-old and telling him that if he doesn’t plead to a 50 year sentence, the government will take him to trial and seek to keep him in prison until he dies (with no possibility of release).  Keep in mind that the validity of plea agreements is governed by the principles of contract law.  Normally, children under a certain age lack the capacity to enter into contracts.  Imagine what happens to their limited capacity when prosecutors cloaked with the authority of the State confront them with the prospect of JLWOP.

We need to be critical of the District Attorneys’ position in the JLWOP cases.  Of course, defense attorneys have a legal obligation to zealously advocate on behalf of their clients.  They will be, as always, susceptible to criticism themselves.  But, the prosecutors’ arguments about the suitability of JLWOP distract us from the pivotal issues of neurological development and limited culpability that the Sullivan and Graham cases present the Supreme Court.

Proportionality Review Cert Petition Spotlighted

Posted in Cases, News by Bidish J. Sarma on September 23, 2009

Earlier today, SCOTUSblog placed our cert petition in Holmes v. Louisiana on the “Petitions to Watch” list here.

The Question Presented in the petition is:

Louisiana’s capital punishment scheme relies upon appellate review to ensure that death sentences are not disproportionate to the penalty imposed in similar cases. In assessing whether Petitioner’s sentence was excessive, the Louisiana Supreme Court did not examine similar first-degree murder cases that resulted in a life sentence, consider Petitioner’s extensive mitigating circumstances, or assess her codefendant’s relative culpability. The question presented is whether the operation of Louisiana’s capital punishment scheme violates the Eighth Amendment’s guarantee against arbitrariness in capital sentencing.

In the coming week, our blog will explore some of the issues raised by deficient proportionality reviews being conducted by state supreme courts all across the country.

Please find the full cert petition below. All of the helpful amici briefs can be found at the SCOTUSblog link above and here.

View this document on Scribd

Romell Broom Must Die

Posted in Uncategorized by Robert Smith on September 16, 2009

In May of 1946,  the state of Louisiana attempted to execute Willie Francis for the murder of  a well-known local businessman. But a strange thing happened after Willie was strapped into the electric chair. It didn’t work right. Willie didn’t die. Willie’s case, Francis v. Resweber,  ended up at the United States Supreme Court, where he lost 5-4. Louisiana promptly strapped Willie back into the electric chair. And that time it did work. This horrifying story has been told many times and in various mediums. I recommend three in particular: Willie Francis Must Die Again (documentary) , The Execution of Willie Francis (book), and, most recently, When Willie Francis Died (link to SSRN Page. This article also discusses the references to Willie’s case made in Baze v. Rees, the recent lethal injection decision).

The electric chair is long gone in Ohio. But that didn’t stop today’s botched execution. Execution team volunteers tried for  two hours to find a vein to carry Ohio’s lethal cocktail into Broom’s body. When they could not, Governor Strickland granted Broom a temporary reprieve (read: one week delay).

And if this case alone is not enough, the problem appears to be important and recurring. CNN Reports:

In May 2006, Ohio officials took nearly 90 minutes to carry out the execution of Joseph Clark because of problems finding a vein. Once they did find one, it collapsed, according to the Toledo Blade. Clark repeatedly shook his head, according to the newspaper, and told officials, “It don’t work.”

A year later, Ohio inmate Christopher Newton’s execution reportedly took two hours after a prison team had trouble finding a vein.

Granted, Willie Francis felt more physical pain than Romell Broom. But it’s been more than six decades since Willie Francis had his day at the Supreme Court. And what common decency and common sense should have told us then is pellucidly clear now: The execution process is emotionally and psychologically devastating—for the defendant, his family and friends, the victim’s family and friends, the guards, the legal teams and even the politicians who must make last minute judgment calls.

Regardless of the degree of mercy that any defendant shows a victim, our system demands that we not carry out cruel and unusual punishment and that we provide due process of law. Whether the Constitution permits Ohio another shot at executing Romell Broom is a question that deserves a hard look. And if the courts won’t look, then I hope Governor Strickland will.

Other coverage: StandDown Texas has this post (which includes Professor Deborah Denno’s take). Sentencing Law and Policy has this post. Capital Defense Weekly here.  Crim Prof blog here.  Crime and Consequences blog has this post, which includes:

I have said from the beginning that the switch to lethal injection was a bad idea. All we needed to do to fix the gas chamber problem was use a different gas.