The Law of Parties & the Death Penalty

The Dallas Morning News wrote on August 26, 2007 in "Not a Killer: Kenneth Foster does not deserve execution":

But using the law of parties, prosecutors argued that Mr. Foster, who was 19 at the time, either intended to kill or "should have anticipated" a murder.For this lack of foresight, he has been sentenced to death.

The death penalty, proponents argue, is the appropriate punishment for the worst of the worst criminals. They express confidence that death row inmates are guilty beyond a reasonable doubt. But the case against Mr. Foster falls far short on both counts.

A 19-year-old robber/getaway driver cannot be classified as one of Texas' most dangerous, murderous criminals. On this point, even prosecutors agree: Mr. Foster did not kill anyone.

By applying the law of parties to this capital case, prosecutors are asking jurors to speculate on whether he should have anticipated the murder. Conjecture isn't nearly good enough when a defendant's life is on the line.

And relying on a mind-reading jury leaves plenty of room for reasonable doubt.

Several other states have imposed or are considering a moratorium on executions, relying instead on life without parole as a tough alternative. Even though Texas juries now have the option of life without parole, our state continues to broadly impose capital punishment.

The unfair application of the death penalty and the possibility that an innocent man could be executed compelled this newspaper to voice opposition to capital punishment. This case only reinforces our belief that state-sanctioned death is often arbitrary.

While Mr. Foster's execution date approaches, the two passengers from his car sit in prison with life sentences. His only hope for a reprieve lies with the Texas Board of Pardons and Paroles and the governor.

This case raises serious questions about whether state leaders are comfortable with this degree of ambiguity in death cases. We aren't. Mr. Foster is a criminal. But he should not be put to death for a murder committed by someone else.

The Houston Chronicle wrote on Sept 1, 2007 in "Timely judgment / Gov. Perry was wise to acknowledge flaws in Kenneth Foster's death sentence":

The governor's decision did not, however, arise from the "law of parties" - the unique Texas law that holds all participants in a capital crime equally culpable, if it can be proved they "should have anticipated" the fatal outcome. The advocates for reducing Foster's sentence included 13 members of the Legislature, most of whom argued that Foster had no idea a shooting would take place. Foster and his co-defendants testified that while Foster knew of the previous crimes that night, he didn't anticipate murder.

...Perry's commutation came only hours before Foster was to die. That there was not one question, but two about the propriety of his sentence underscores qualms about the unflinching way Texas imposes the death penalty. Foster would have been the 403rd person to die since the death penalty was restored here.

The case is extraordinary, not just because Foster was saved at such a late hour, but because the governor agreed with the parole board that the sentence was unwarranted. Not required to follow its recommendations, Perry once before rejected the board's 5-1 vote for clemency in the case of a schizophrenic inmate. That prisoner was executed in 2004.

Foster's role in Michael LaHood's death deeply harmed his loved ones and society. Putting Foster to death, however, would have been an unfit punishment for the part he played. The pro-death penalty Perry was wise to acknowledge that, in this case, life in prison was just.

At the same time, Foster's close call - and the multiple questions about the fairness of the sentence - only deepens doubts about other Texas convictions that ended in lethal injection. It took a timely mix of evidence, representation and political leadership to forestall Kenneth Foster's execution. Absent any one of these at the right moment, the miscarriage of justice would have been permanent.

The Austin American-Statesman wrote on August 29, 2007 in "Another Stain on Justice, Texas Style":

The inescapable problem with the Law of Parties is that a jury has to go back in time and read the defendant's mind, guess at his intention. The sentence is based on what the jury believed Foster was thinking when the crime occurred. No one's life should hinge on guesswork by jurors.