Kenneth Foster was convicted of capital murder in Texas even though he did not fire the gun that left a man dead in 1996. Prosecutors sought death for Foster under the state’s “law of parties,” which allows the assignation of guilt to secondary actors in a crime, reports the Austin Chronicle. Under the law of parties, the jury was not required to find that Foster had any intention of harming the dead man; instead, all the jurors needed to conclude was that Foster should have anticipated that a friend’s actions might result in the death.
Foster’s defenders say his case is a textbook example of the large and potentially deadly problem with the Texas law of parties. Specifically, they argue that a section of that law unonstitutionally makes a defendant eligible for the death penalty “for being at the wrong place at the wrong time.” “There are many more people who commit murder by their own hand than are caught in the death penalty net,” says University of Texas law professor Jordan Steiker. Supporters of capital punishment insist that the death penalty is reserved for “the worst of the worst.” If that’s true, asks Steiker, “How can someone be eligible in this vicarious way?”