Texas plans to exe­cute Joseph Garcia on December 4, 2018, for the mur­der of a police offi­cer dur­ing a rob­bery in which Garcia nei­ther killed any­one nor intend­ed or expect­ed that a killing would take place. His case renews ques­tions about a Texas law called the ​“law of par­ties” that allows defen­dants to be sen­tenced to death based upon the actions and intent of oth­ers, if the defen­dant played even a small role in a crime that result­ed in someone’s death.

Garcia was one of the ​“Texas 7,” a group of men who escaped from a max­i­mum-secu­ri­ty Texas prison on December 13, 2000. After escap­ing, the men robbed a sport­ing goods store, where some of the men were con­front­ed by police offi­cer Aubrey Hawkins. Garcia graph­i­cal­ly described the rob­bery in a radio inter­view with David Martin Davies for the Texas Public Radio pro­gram, Texas Matters. Garcia admit­ted to par­tic­i­pat­ing in the escape and the rob­bery but insist­ed he nev­er fired his gun and was still inside the store when he heard gun­fire break out. He tried to stop the shoot­ing, and dur­ing the con­fu­sion in which Officer Hawkins was killed, Garcia him­self came under fire by oth­ers in the group. ​“I don’t know what caused them to start fir­ing at the offi­cer. By the time I got out there on the back dock, it was over,” he said.

Under Texas’s law of par­ties, accom­plices who par­tic­i­pat­ed in one felony can be held respon­si­ble for oth­er felonies com­mit­ted by oth­er par­tic­i­pants. Since Garcia par­tic­i­pat­ed in rob­bing the store, he was eli­gi­ble to be charged with the cap­i­tal mur­der of Officer Hawkins, whether or not he fired a gun. In the Texas Matters inter­view from death row, Garcia ques­tioned the rea­son­ing behind his death sen­tence. ​“Why am I here? Why am I on death row? You know, I don’t get it,” Garcia said. ​“Why are you try­ing to kill me for the actions of somebody else?”

Texas Rep. Harold Dutton (D – Houston) has filed leg­is­la­tion to end the law of par­ties. ​“We shouldn’t use the law of par­ties to con­vict any­body of cap­i­tal mur­der,” he said. ​“I think we ought to reserve that for the per­son who actu­al­ly did the mur­der.” Garcia’s lawyers have chal­lenged the con­sti­tu­tion­al­i­ty of exe­cut­ing a per­son who nei­ther killed nor intend­ed that a killing take place. Texas pros­e­cu­tors have argued that the Supreme Court should not hear the issue because Garcia’s pri­or lawyers should have raised the issue years ago. Three of the Texas 7 have already been exe­cut­ed, and a fourth killed him­self to avoid capture.

Garcia’s attor­neys also filed an emer­gency request for a stay of exe­cu­tion on November 29, ask­ing for time to inves­ti­gate rev­e­la­tions about the safe­ty record of the phar­ma­cy that pro­vides Texas’s lethal-injec­tion drugs. Texas has secre­cy laws in place to hide the iden­ti­ty of its drug sup­pli­er, but an inves­ti­ga­tion by BuzzFeed News uncov­ered the iden­ti­ty of the sup­pli­er, Greenpark Compounding Pharmacy. The pharmacy’s license is cur­rent­ly on pro­ba­tion after it pro­duced the wrong med­i­cine for three chil­dren, result­ing in one requir­ing emer­gency med­ical care. It has been cit­ed for 48 vio­la­tions over the last eight years, includ­ing inad­e­quate clean­ing of hands and gloves, and keep­ing expired drugs in stock. In a let­ter to Gov. Greg Abbott, Garcia’s attor­neys wrote, ​“The fact that Texas may be rely­ing on a com­pound­ing phar­ma­cy for pen­to­bar­bi­tal, which is a ster­ile injectable, sub­jects our client, Joseph Garcia, to the unrea­son­able risk of a cru­el exe­cu­tion. His con­cerns are not mere spec­u­la­tion; the phar­ma­cy from which Texas may have obtained its sup­plies of ster­ile-injectable pen­to­bar­bi­tal has been repeat­ed­ly cit­ed by the FDA and the Texas Board of Pharmacy for safe­ty vio­la­tions in its com­pound­ing prac­tices.” Five of the eleven peo­ple exe­cut­ed in Texas in 2018 said they felt pain or burn­ing as the drugs were inject­ed. Witnesses report­ed that a sixth pris­on­er writhed and shook as the drug was inject­ed. The low­er fed­er­al courts reject­ed the claim, which was still pend­ing before the Supreme Court on the after­noon of December 4.

(David Martin Davies, Texas Matters: ​‘Texas 7’ Escapee Set For Execution, Texas Public Radio, November 30, 2018; Keri Blakinger, ​‘Texas 7’ escapee fights death sen­tence as Dec. 4 exe­cu­tion nears, Houston Chronicle, November 23, 2018; Chris McDaniel, A Death Row Inmate Asks For More Time After BuzzFeed News Revealed A Troubled Source Of Texas’s Execution Drugs, November 29, 2018.) See Arbitrariness.

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