The Fort Worth Star-Telegram is urg­ing the Texas Board of Pardons and Paroles and Texas Governor Rick Perry to spare the life of Kenneth Foster (pic­tured), whose exe­cu­tion is sched­uled for August 30. Foster was sen­tenced to death under the Texas Law of Parties that per­mits a per­son involved in a crime to be held account­able for the actions com­mit­ted by some­one else. In this case, Texas main­tains that Foster deserves the death penal­ty because he should have antic­i­pat­ed that a pas­sen­ger in his vehi­cle, Mauriceo Brown, would exit the car with a weapon and fatal­ly shoot Michael LaHood. The paper not­ed that Foster’s case is a prime exam­ple for why Texas law­mak­ers need to revis­it and revise the state’s cur­rent Law of Parties, observing:

Kenneth Foster Jr. is no mod­el cit­i­zen. But he does­n’t deserve to die.

If the state’s ​“law of par­ties” statute does not per­mit the Texas Board of Pardons and Paroles and Gov. Rick Perry to real­ize that, the law is sub­ject to Charles Dickens’ char­ac­ter­i­za­tion in Oliver Twist:

“ ​‘If the law sup­pos­es that,’ said Mr. Bumble, … ​‘the law is a ass — a idiot.’ ”

…

Foster cer­tain­ly is not more guilty than Mauriceo Brown, who fatal­ly shot Michael LaHood in the ear­ly hours of Aug. 15, 1996, in San Antonio. Nor is he more guilty than DeWayne Dillard and Julius Steen, who were in the car smok­ing mar­i­jua­na with Brown while Foster drove.

Foster did not get out of the car when Steen and Brown robbed a Hispanic woman at gun­point and lat­er robbed a man and two women in a park­ing lot. And Foster did not leave the car when Brown jumped out and shot LaHood after a brief verbal exchange.

Brown was exe­cut­ed July 19, 2006. Neither Steen nor Dillard were pros­e­cut­ed for this case, although both are serv­ing long prison sen­tences. Foster’s tri­al lawyers nev­er even inter­viewed them. Both were fac­ing charges in oth­er cap­i­tal cas­es, and their attor­neys nixed mak­ing them avail­able to Foster’s defense team, accord­ing to Amnesty International.

Texas law states that ​“if, in the attempt to car­ry out a con­spir­a­cy to com­mit one felony, anoth­er felony is com­mit­ted by one of the con­spir­a­tors, all con­spir­a­tors are guilty of the felony actu­al­ly com­mit­ted, though hav­ing no intent to com­mit it.” Defendants can be held respon­si­ble for ​“fail­ing to antic­i­pate” that the con­spir­a­cy — in Foster’s case, the rob­beries — would lead to another felony.

The ​“law of par­ties” is clear­ly about con­spir­a­cy and orga­nized crime. Foster’s case shows lit­tle orga­ni­za­tion, much less a conspiracy.

Four states oth­er than Texas have ​“law of par­ties” statutes. But Texas is the only state that applies it in cap­i­tal cas­es, mak­ing it the only place in the coun­try where peo­ple can face the death penal­ty even though they did­n’t actu­al­ly kill the victim.

The long-term solu­tion is for the Texas Legislature to revis­it the state’s ​“law of par­ties” statutes.

That does­n’t help Foster, who is sched­uled for exe­cu­tion by lethal injec­tion Aug. 30.

5 out of sev­en mem­bers of the Board of Pardons and Paroles must rec­om­mend clemen­cy before Perry will con­sid­er it. We urge them to make that rec­om­men­da­tion to the governor.

Foster might deserve to spend the rest of his nat­ur­al life sit­ting behind bars. But to do that, he has to be alive.

(Fort Worth Star-Telegram, August 19, 2007). See Editorials, Upcoming Executions, and Arbitrariness.

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