Capital Punishment for People Who Didn’t Kill
As shocking as the fact that Texas has killed 400 people is the fact that the 401st person Texas is scheduled to kill tomorrow did not even kill anyone. Texas is so giddy about executions that it is the only state that consistently extinguishes lives under the doctrine of "law of the parties": where someone should have anticipated a murder he neither committed nor knew was going to occur.
Tomorrow, Kenneth Foster faces death under this unspeakably harsh rule. In 1996, when Mr. Foster was a teenager, he and three friends were out causing trouble. One of them had a gun. They went out to rob a few people, which they did (without causing physical harm), but never discussed killing anyone. At one point, with Foster driving, they followed a few cars to a party. A woman, accompanied by her boyfriend, Michael LaHood, exited one of the cars and bickered with Foster and his friends for following her car. Foster was set to drive away, when one of his friends, Mauriceo Brown, jumped out of the car, followed the woman and her boyfriend towards the party, confronted them, and ended up shooting and killing Mr. LaHood.
Under the "law of parties", Texas sought the death penalty for Mr. Foster under the theory that he "should have anticipated" that Mr. Brown would kill Mr. LaHood. The fact that Mr. Foster did not intend for Mr. LaHood to die was irrelevant; what mattered was that he should have anticipated it.
The prosecution built its theory off of trial testimony by Julius Steen, one of the four men in the car, that he "kind of thought" that Mr. Brown was going to rob Mr. LaHood when Mr. Brown exited the car. However, it turns out that Mr. Steen had negotiated a plea deal with the prosecution prior to testifying. Since trial, he has signed an affidavit stating that, in fact, there was no conspiracy among the four men, he did not think that Mr. Brown was going to rob or kill Mr. LaHood, and everyone in the car, including Mr. Foster, were surprised by Mr. Brown's actions.
U.S. District Judge Royal Furgeson of San Antonio overturned Mr. Foster's death sentence, holding that there was "no evidence showing Foster intentionally encouraged, directed, aided, or attempted to aid Brown's murder of LaHood." But a higher court in New Orleans reversed Judge Furgeson's decision and reinstated Mr. Foster's death sentence.
Texas has already executed the shooter, Mr. Brown. But its insatiable appetite for killing has not been satisfied, so now they are about to kill Mr. Foster. Highlighting the arbitrariness of capital punishment , even though Texas could have prosecuted the other two members of the vehicle under "law of the parties", it struck a deal with Mr. Steen and did not even prosecute the fourth member, Dwayne Dillard.
Its numerous drawbacks aside, isn't capital punishment in theory intended for society's most depraved criminals? How do its supporters justify using it against the driver of a car who did not intend to kill anyone, or know anyone would be killed? The "should have anticipated" theory is far too ambiguous and amorphous to hang someone's life on (or to hang someone). And yet there are around 80 people on death row in Texas under just such a theory.
The Eighth Amendment of the Constitution prohibits punishments that are both "cruel" and "unusual". It would be cruel to execute someone who neither committed, planned, or anticipated a murder, and it would be unusual as well, since Texas is the only state that employs capital punishment broadly to such cases.
To urge the governor and the Texas Board of Pardons and Paroles to stay Mr. Foster's execution, you can:
Call Governor Perry at the Office of the Governor Main Switchboard: (512) 463-2000
(office hours are 8:00 a.m. to 5:00 p.m. CST)
Citizen's Opinion Hotline: (800) 252-9600 (for Texas callers)
Citizen's Assistance and Opinion Hotline: (512) 463-1782
(for Austin, Texas and out-of-state callers)
Fax a letter to the Board of Pardons and Paroles at (512) 467-0945
Texas Board of Pardons and Paroles
Executive Clemency Section
8610 Shoal Creek Boulevard
Austin, Texas 78757