Texas House of Representatives Passes Bill to Limit Death-Penalty Eligibility for Defendants Who Do Not Kill

In an over­whelm­ing bipar­ti­san vote, the Texas House of Representatives has passed a bill that ends death-penal­ty lia­bil­i­ty under the state’s con­tro­ver­sial ​“law of par­ties” for felony accom­plices who nei­ther kill nor intend­ed that a killing take place and were minor par­tic­i­pants in the con­duct that led to the death of the vic­tim. Currently, Texas law makes any par­tic­i­pant in a felony crim­i­nal­ly liable for the acts of every­one else involved in the crime, irre­spec­tive of how small a role he played in the offense or whether he knew or intend­ed that a killing would occur. 

The state House vot­ed 135 to 6 on May 5, 2021 to approve HB 1340, advanc­ing the bill for con­sid­er­a­tion by the Texas Senate. The leg­is­la­tion also directs the Texas Board of Pardons and Paroles to review the cas­es of pris­on­ers who pre­vi­ous­ly had been sen­tenced to death under the rule of par­ties to ​“iden­ti­fy appro­pri­ate inmates to rec­om­mend to the gov­er­nor for pur­pos­es of granting clemency.” 

The bill’s spon­sor, Rep. Jeff Leach (R – Plano), said ​“I have trou­ble sleep­ing at night know­ing that there is … a man, and per­haps many men and women, on death row right now who could be put to death any day by the state when they did­n’t kill any­body.” ​“We want to reserve the death penal­ty … for cas­es in which there is intent,” Leach said.

Leach, a death-penal­ty sup­port­er, became a cham­pi­on of reform­ing the law of par­ties when Texas was on the verge of exe­cut­ing Jeffery Wood in August 2016. Wood was con­vict­ed and sen­tenced to death even though he nei­ther killed nor intend­ed for any­one to be killed and, his sup­port­ers say, was in a car in the park­ing lot not even aware that the rob­bery in which a code­fen­dant killed a store clerk was going to occur. The Texas Court of Criminal Appeals stayed Wood’s exe­cu­tion five days before he was sched­uled to die to per­mit him to lit­i­gate a claim that the pros­e­cu­tion had pre­sent­ed false expert evi­dence claim­ing he would pose a con­tin­u­ing threat to soci­ety if spared the death penalty.

Since 1976, at least eleven peo­ple have been exe­cut­ed after being sen­tenced to death in felony-mur­der cas­es in which the evi­dence undis­put­ed­ly estab­lish­es that they did not kill any­one. Six of those men were exe­cut­ed in Texas under the law of par­ties. In 2019, an ACLU review of death penal­ty statutes in the United States found that 27 states per­mit the death penal­ty for non-trig­ger­men. However, no oth­er state statute sub­jects non-killers to cap­i­tal pun­ish­ment as broad­ly as the Texas law of parties.

In a May 6 col­umn for the Austin American-Statesman, Ken Herman not­ed some of the injus­tice wrought by the law of par­ties. ​“It’s a law that always makes me think back to Doyle Skillern and Charles Sanne, both con­vict­ed in the 1974 slay­ing of Texas Department of Public Safety under­cov­er nar­cotics offi­cer Patrick Randel in Aransas County,” Herman wrote. ​“Sanne fired six shots that killed Randel, who was in a car with him. Skillern was in anoth­er vehi­cle near­by and was in on the planned rob­bery that turned into unplanned mur­der. Under the law of par­ties, non-gun­man Skillern was exe­cut­ed in 1985. Gunman Sanne also was sen­tenced to death, but that was reduced by the Texas Court of Criminal Appeals to life in prison in 1980. And that’s where he died in April 2018.”

A few months lat­er, in December 2018, Texas exe­cut­ed Joseph Garcia, one of sev­en Texas prison escapees impli­cat­ed in a failed rob­bery that led to a shootout in which a police offi­cer was killed. Garcia was sen­tenced to death despite not par­tic­i­pat­ing in the shootout and, he said, com­ing under fire him­self when he tried to stop the shooting.

Most recent­ly, the state came with­in an hour of exe­cut­ing Ruben Gutierrez in June 2020. Gutierrez had sought DNA test­ing to sup­port his claim that he had been wait­ing in a park at the time of the mur­der, unaware that his co-defen­dants were going to kill an elder­ly woman while rob­bing her home. The U.S. Supreme Court halt­ed his exe­cu­tion only because Texas had refused to allow his spir­i­tu­al advis­er to accom­pa­ny him into the exe­cu­tion cham­ber. Ruling on a motion that was unde­cid­ed at the time Gutierrez received his stay, a fed­er­al judge lat­er declared that Texas had uncon­sti­tu­tion­al­ly denied him DNA test­ing.

Both Wood’s and Gutierrez’s cas­es remain on appeal.