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.