Texas will execute Kenneth Foster on August 30th for the murder of a man whom prosecutors acknowledge was killed by someone else. Foster's crime? He agreed to participate in armed robberies and did with two incidents, but the murder occurred extemporaneously at another, unplanned place.
Is this execution fair? It's certainly legal:
Kenneth Foster Jr. is scheduled to be executed in Texas later this month for the murder of Michael LaHood, even though everybody -- even the prosecutors -- knows Foster did not kill the man.
Mauriceo Brown, who has admitted to shooting LaHood to death in August 1997, was executed last year, but barring an unlikely 11th-hour commutation from Gov. Rick Perry and the Texas Board of Pardons and Parole, Foster will meet the same fate on Aug. 30.
On the night of Aug. 14, 1997, Foster, Brown, DeWayne Dillard, and Julius Steen were drinking and smoking marijuana when they decided to use Dillard's gun to commit two armed robberies, according to Foster's attorney, Keith Hampton.
As they drove home, LaHood's girlfriend Mary Patrick appeared to flag their car down. According to testimony from Dillard and Steen, the car pulled over and Brown exited the vehicle. There had been no discussion that he would rob or kill LaHood, and he was effectively "acting out of an independent impulse," according to testimony.
After Brown shot LaHood, Foster, who was 19 at the time, became very anxious and started to leave the scene, but Dillard and Steen made him wait for Brown to get back in the car. They drove off, but were arrested shortly thereafter, Hampton said.
Texas has a legal concept known there as the "law of parties", a concept that every state uses to ensure that all members of a group that commit a crime share the guilt, not just the triggerman. It eliminates the finger-pointing that arises during trial, when defense attorneys start shifting blame to co-defendants in attempts to get their client off the hook. However, that usually does not apply to sentencing, especially when the triggerman admits to the murder.
Not everyone in this case got the death penalty. Only Foster and Brown did, and Brown has already been executed. The other two conspirators pled out and got lighter sentence, even though apparently they forced Foster to continue with the group. Normally,in cases such as this, the non-shooter would get sentenced to life rather than executed.
No one doubts that Foster should be in prison for a very long time. Participating in two armed robberies should have landed him there for decades. Moreover, since his group committed a murder, he bears responsibility for that crime as well. But should the punishment for the non-shooter be the same as for the shooter?
Let's take a look at another famous case of armed robbery and murder. Kathleen Soliah participated in an armed robbery as a member of the SLA, a notoriously violent group. In the course of the robbery, someone shot and killed a bank employee. Soliah went on the run, and didn't get caught until 23 years had passed. She got six years for her participation in the murder of Myrna Opsahl, a ridiculously short sentence but the longest possible under the plea deal she made.
This is what bothers me about the death penalty. Its application is inconsistent, and it has the potential for abuse, which this case arguably demonstrates. Even if I supported the death penalty -- which at one point I did -- applying it to a known non-shooter would seem a miscarriage. Texas Governor Rick Perry should think about breaking his streak of non-intervention in this case.
UPDATE: Before the comments get too far afield, I'm not arguing that Foster is not guilty of murder. Clearly he is, and would have been in any state, not just Texas. I'm arguing that the death penalty is excessive in a case where he was the getaway driver and not the shooter.
UPDATE II: On the other hand, in this case we have a shooter who gets out of jail after seven months:
After spending a total of seven months in custody, the Tennessee woman who fatally shot her preacher husband in the back was released on Tuesday, her lawyer told CNN.
Mary Winkler, a 33-year-old mother of three girls, was freed from a Tennessee mental health facility where she was treated for depression and post-traumatic stress disorder, lawyer Steve Farese said.