Capital Punishment for People Who Didn’t Kill

Ezekiel Edwards

Capital Punishment for People Who Didn’t Kill

We all know that Texas likes to kill people. This month, Texas executed its 400th person since 1976. Many of those were "vetted" by Alberto Gonzales and approved by President Bush.

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)

and

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

Posted at 11:14 AM, Aug 29, 2007 in Criminal Justice | Prisons | Permalink | Comments (9)

Comments

I should also mention that of the 206 people who have been exonerated through post-conviction DNA testing, 29 have occurred in Texas. http://innocenceproject.org/know/Browse-Profiles.php

People really should just at least make the call. I did, it takes 3 seconds.

Not a word of sympathy for the victims. The criminal lover lawyer loves only the criminal. Why? The victim generates no fees. What a horrible person the criminal lover lawyer is.

Daroyce Moseley, 401, was killed by the people of Texas on 28 August 2007.
John Amador, 402, was killed by the people of Texas on 29 August 2007.
To prevent Kenneth Foster, Junior from being executed by the people of Texas, contact the Texas Board of Pardons and Paroles at (512)406-5852 asking that the recommend to Governor Perry that clemency be granted and that Mr. Foster's sentence be commuted to a humane alternative. For additional information, log on to http://www.freekenneth.com and/or on to http://www.ncadp.org under urgent actions. Translate your principles into behaviour by becoming part of the solution. Thank you and in peace.

K. Bandell,

Thank you for the links as well as for noting that Texas killed two more people in the past few days, giving it a total of 402 since 1976. How depressing that it's difficult to keep up with how many people Texas executes.

According to ABC News, Kenneth Foster's death sentence was commuted to life imprisonment by Gov. Rick Perry. Thank you to everyone who emailed, wrote, or called the Board of Pardons and Parole. Thanks for the post Zeke.

To "Supremacy Claus":

Advocating that someone should not die for a crime they did not commit and feeling pain for the suffering of victims are not mutually exclusive. Your comment is a distraction from the issue and the facts; Texas was about to execute Kenneth Foster not for pulling the trigger or intending Mr. LaHood's death, but for not being psychic. Rick Perry did a good thing in commuting Foster's sentence to life.

"I should also mention that of the 206 people who have been exonerated through post-conviction DNA testing, 29 have occurred in Texas."

So you are telling me that Texas, the state that executes more people every year than the rest of the country combined, only has roughly 7% of the screwups so far. Sounds like they are doing something right to me.

You need to put that dumb comment in perspective.

Glyph,

First of all, your math is off. Texas has accounted for around 14% of wrongful convictions proven by DNA.

Second, it is disturbing that you think Texas is doing something right because it is responsible for "only" 14% of the wrongful convictions proven by DNA --- especially since it still has more wrongful convictions than any other state.

Third, you really miss the point here.

The DNA exonerations are only cases, obviously, where DNA existed. These are almost only murder and rape cases, which account for only 2% of all felony convictions. And even in most rape and murder cases wheree there was DNA, often the DNA has been destroyed before it can be tested, used up in initial testing, or now cannot be found.

So the DNA cases are merely the tip of the iceberg; if you consider all other cases (there are many, many more robbery cases than rape cases every year, for example), including misdemeanor cases as well, where there is no DNA to conclusively prove innocence, then, in fact, one realizes that there are many more innocent people in prison than have been proven thus far.

In fact, including non-DNA exonerations, the total number of wrongful convictions doubles. But the 29 and counting DNA exonerations in Texas are only those in which (1) DNA existed; (2) DNA was located; (3) and the court agreed to testing. In other words, a miniscule percentage of all cases. And yet there are still 29.

Some people say, "our state only gets it wrong 1% of the time"; but if 1% of all planes crashed upon takeoff, airlines would be shut down and a nation-wide investigation would begin. The bottom line is that there are problems in our criminal justice system that need to be fixed.

But those who lean back and take something positive away from Texas accounting for14% of the DNA exonerations, in addition to indicating that they obviously never thinks such a fate could befall him, are clearly not interested in improving our criminal justice system.