Tuesday, May 12, 2009

'Worst of the worst'? House will consider 'law of parties' in capital cases

Should the death penalty be applied only to the worst of the worst, or also to those who associate with them?

That's a question the Texas House will answer today when they take up and consider legislation to eliminate the death penalty for accomplices who didn't kill anyone based on the "law of parties." The issue rose in prominence last year when Governor Rick Perry commuted Kenneth Foster's death sentence under the law of parties and called on the Legislature to reconsider the issue of whether accomplices in capital murder cases should receive separate trials.

The bill up today would require an accomplice in a capital murder case to stand trial separately from the actual killer and eliminate the death penalty for people who didn't personally murder anyone. As Scott Cobb described HB 2267 by Hodge on Burnt Orange Report:

HB 2267 would require separate trials for co-defendants in capital trials in which the death penalty is sought and would prohibit the state from seeking the death penalty for people who do not kill anyone but are convicted under the Law of Parties. It is fundamentally unfair to sentence someone to death, like Kenneth Foster was, if they did not kill anyone. The death penalty is intended to be reserved for the worst of the worst killers. People who do not themselves kill anyone are not only not the worst of the worst, they are not even killers.

The Law of Parties allows people who "should have anticipated" a murder to receive the death penalty for the actions of another person who killed someone. A person sentenced to death under the Law of Parties has not killed anyone. They are accomplices or co-conspirators of one felony, such as robbery, during which another person killed someone. However, in some cases a person can end up on death row under the law of parties even though they did not even know their co-defendant had any intention to hurt or even rob the victim, which is what happened to Kenneth Foster. A person who did not kill anyone, or intend anyone to be killed, should not be executed for the actions of another person.

Non-killers convicted of capital murder under the law of parties could still receive life without parole, as I read the bill, but the death penalty would be off the table. See a good discussion of the legislation and its pros an cons from the House Research Organization.

Relatedly, see also an open letter I wrote last year to the Governor and the parole board regarding Kenneth Foster and the law of parties, which declared in part that, "Increasingly I've come to believe that, if the death penalty is ever abolished, at least in this state, it will not be because its opponents succeed politically but as a backlash to its overzealous implementation." In that sense, arguably, this legislation does more to preserve the death penalty than to limit it. I hope they approve it.

19 comments:

Informed Citizen said...

"We hold these truths to be self-evident, that all men are created equal."
Translation - What applies to people who are NOT employed at public expense, applies EQUALLY to those who are employed at public expense.
LAW OF THE PARTIES: All State Actors who are complicit in depriving a member of the public of their inherent, unalienable, Rights are subject to the same penalty as the one who committed the unlawful act.
JUSTICE, if it be justice, is blind to the social-economic status of the perps and victims. Thus, what applies to one employed at public expense is applied EQUALLY to those who are not.

jigmeister said...

How about those who do intend that someone die, i.e. those that hire someone to kill for them? I don't mind getting rid of DP, but think that those who intend the murder of another deserve the same penalty as the killer.

123txpublicdefender123 said...

I'm find with getting rid of the death penalty for those convicted of capital murder under the felony-murder rule. I am opposed to the death penalty in all cases, but, if we're going to have it, I think there should be fair application of it. That said, I would not want to see it made so that you had to be the actual gunman to get the death penalty. If you hire a hitman, for example, specifically to kill someone, you should be just as eligible for the death penalty as the hitman. Scott, can you clarify how the proposed law addresses a situation like that?

sunray's wench said...

jigmeister - if the intent to kill is there but no action by the defendent results in a death by their own hand, then the option would be something similar to England's conspiracy to commit murder. It's the kind of thing used in cases of 'contract killings'.

It is a review that is LONG overdue.

jigmeister said...

I agree that a contract killing legally requires a conspiracy to kill another. But I also believe that the contractor is at least as responsible as the hitman if not more so. But for his conduct, no one dies.

Gritsforbreakfast said...

jig and all - you raise a valid question to which I don't know the answer.

There are about 9 different specific reasons you can be charged with capital murder, and one of them is if you committed the murder for hire. The Lege could have also chosen to include the person who hires an assassin, but for some reason did not. It would be interesting to go back and listen to/research the debate over why they included the hitman in the capital murder statute but NOT the person who hired them. It's a debate I've never fully considered (and of course, the DP isn't really my bailiwick).

Personally, I'm not opposed to the DP inherently but I think the law of parties is too broad and open to abuse. IMO if they wanted to add hiring a hitman to the list of reasons that get you the DP, that would be a narrower, cleaner, and more appropriate way to get to that result. By contrast, most cases involving the DP and the law of parties - that I'm aware of, anyway - don't appear to involve that set of circumstances and for that reason I support this bill.

Anonymous said...

It will never pass because it is an absurd distinction.

Gritsforbreakfast said...

What's absurd, exactly? The distinction between shooter and non-shooter seems pretty concrete.

123txpublicdefender123 said...

One issue I could see people bringing up is the example of the Texas 7. They killed a cop while fleeing from an armed robbery, and he was shot multiple times by different people. Trying to determine which person actually caused his death could have been tricky. In the end, every last one of those defendants got the death penalty.

I think if the intent of all parties involved was murder, then it seems fair to me to apply the death penalty to that. My problem is when some kid signs up to be a getaway driver in a robbery, and the actual robber decides to shoot and kill people, and then the getaway driver gets tagged with the death penalty. Writing a law, though, that would sort all this out seems tricky.

I tend to have a bigger problem with the fact that committing the murder in the course of certain enumerated felonies being a distinguisher. Why is someone the "worst of the worst" for killing someone during a robbery, but not for killing someone just for the thrill of killing someone? I remember in the James Byrd case, they had to prove that he was still alive when they chained him to the truck, so they could prove he was kidnapped, and therefore it was a capital murder. Would those people have been less worthy of the death penalty if they had just held him down and stabbed him to death because he was black? Or, if they had shot him dead first, and then dragged him from the back of their truck to get their jollies? I don't get it.

Also, Scott, I think you're incorrect about the person who hires a hitman not being death eligible. The capital murder statute says:
"3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;

Scott Cobb said...

A person who who hires someone to kill another person is charged with capital murder under section 19.03 of the Texas Penal Code, not under Section 7.02 of the Texas Penal Code, which is the Law of Parties section. Both the hiring of the person and the one who actual commits the murder is charged with capital murder and can receive the death penalty.

The Law of Parties is a different concept in which a person can be charged with capital murder if they are participants in another felony, such as robbery, and in the course of that first felony, an accomplice commits a second felony (murder), then anyone who was an accomplice in the first felony (robbery) can be charged with the second felony (murder), because the law says they "should have anticipated" that a murder could occur.

The problem with the Law of Parties is that people who have no intention of killing anyone and did not kill anyone, people like like Kenneth Foster, are sentenced to death based on the actions of another person and not their own actions. HB 2267 would still hold people accountable using the Law of Parties but it would not allow a person to be sentenced to death under the Law of Parties.

Gritsforbreakfast said...

Good catch 123 - you're correct. My bad. Clearly hiring a hitman is already covered.

And thanks, Scott C, for the clarification.

sunray's wench said...

Perhaps if lawyers were not permitted to state before the trial what punishment they prefered to be handed to any defended if they are found guilty, then juries would pay more attention to the actual evidences and testimonies before them? Knowing before hand that if a person is found guilty, they will almost certainly get the death penalty, surely must play a part in any juror's decision, particularly if they are losing income by being on the jury or don't understand the legal processes they are being asked to be part of.

Anonymous said...

What if the non killer's gun jammed. What if he is a bad shot and misses his target. What if he rapes the victim and when he gets done, looks at his buddy and says kill the b*tch, and he does.
It ain't that hard to come up with hundreds of scenarios that would show a non-killer/trigger puller death worthy.

Anonymous said...

what if, what if, but if ....... do we really need another law from the legislature?

Judges and juries can and should consider the circumstances of each case and determine the appropriate sentence within their jurisdiction.

jigmeister said...

I agree. Either leave it alone or do away with DP. I have absolutely no sympathy for those who are principles or parties to the crime of capital murder, but complicating the law further and applying exceptions will allow more confusion and more lengthly appeals. The way it works now is unfair to the victims, it is too expensive, too indefinite, and takes too long. Scottus keeps changing the rules and if the purpose is deterance, it don't work. Take it from one who has prosecuted 15 death cases.

Anonymous said...

Back in the 80's Texas executed a man who was the "getaway" driver of an armed robbery. One defendant entered the store and killed the clerk. The "Triggerman" turned State's Witness against the driver and got a life with parole sentence while the driver got the Death Sentence. When the driver was put to death the "Triggerman", who did the actual killing, was out on parole.

Anonymous said...

Another "terrible" law from law and order Texas...

Scott Cobb said...

Executions under the Law of Parties are extremely rare. There have been only three such executions in Texas. That is 0.6 percent of all Texas executions. The last one was in 1993. Kenneth Foster would have been the next one, but his sentence was commuted to life by Governor Perry in 2007.

Under HB 2267, life without parole would remain a sentencing option for people who do not kill anyone or intend anyone to have been killed, but are convicted under the law of parties for having failed to anticipate that someone else would kill someone.

Scott Cobb said...

HB 2267 by Rep Terri Hodge (the Law of Parties bill) passed the full House on second reading tonight. It must pass again on 3rd reading Friday, then it heads to the senate.