America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Texas death sentence for accessory challenged by defense lawyer

Texas' Death Chamber and holding cells, "The Walls" Unit, Huntsville.
Texas' Death Chamber and holding cells, "The Walls" Unit, Huntsville. 
Texas is planning to execute a man next week for a murder he did not commit.

If the sentence were to be carried out, it would mark the 1st time in the United States that an accessory with so little culpability to a murder was put to death, his lawyer said.

Jeffery Wood, 42, is scheduled to be executed on Aug. 24 by lethal injection. He was convicted of taking part in a 1996 convenience store robbery during which clerk Kriss Keeran was fatally shot.

Prosecutors and Wood's lawyers agree that he was in a vehicle outside the store when it was robbed. But prosecutors have said Wood knew the clerk might be shot and Wood's lawyers have refuted their argument.

Wood's roommate at the time, Daniel Reneau, was convicted of pulling the trigger and executed on June 13, 2002.

"I am not aware of a case where a person has been executed with so minimal culpability and with such little participation in the event," lawyer Jared Tyler said in an interview.

"When people think of the death penalty, they think of the worst of the worst," Tyler said. "He was sitting in the truck outside a convenience store when somebody else of their own volition decided to kill somebody."

Tyler said he has filed motions with the state to halt the execution, citing culpability, tainted testimony and mental competency issues.

Ten people have been executed as accessories to felony murder since the United States reinstated the death penalty in 1976, according to the Death Penalty Information Center, which monitors capital punishment. (http://www.deathpenaltyinfo.org/those-executed-who-did-not-directly-kill-victim)

Under Texas' "Law of Parties," a person can be charged with capital murder even if the offense is committed by someone else. "Each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice," according to the law.

Texas has said that Wood is culpable because he knew the robbery was going to take place. After the killing, he entered the store with Reneau to steal the cash box, store safe and remove a video recorder used for security.

Source: Reuters, August 18, 2016

State Rep. Jeff Leach, R-Plano, is hoping to stop the upcoming execution of Jeff Wood

Jeff Wood
Jeff Wood
It's not often that a staunch conservative loses sleep over imposition of the death penalty, but state Rep. Jeff Leach, R-Plano, says he is up nights over the impending execution of Jeff Wood.

The 2-term legislator has spent the past week poring over court documents and speaking with the governor's office and Texas Board of Pardons and Paroles, hoping to prevent what would be the state's 7th execution of the year.

Wood is set to die by lethal injection Aug. 24.

"I simply do not believe that Mr. Wood is deserving of the death sentence," Leach told the Tribune. "I can't sit quietly by and not say anything."

In the early morning of Jan. 2, 1996, Wood sat in a truck outside a Kerrville gas station while his friend, Daniel Reneau, went inside to steal a safe said to be full from the holiday weekend, according to court documents. When the clerk, Kriss Keeran, didn't comply or respond to threats, Reneau shot him dead.

Reneau was sentenced to death and executed in 2002. Wood received his own death sentence under Texas' felony murder statute, commonly known as the law of parties, which holds that anyone involved in a crime resulting in death is equally responsible, even if they weren't directly involved in the actual killing.

According to Nadia Mireles, Wood's then-girlfriend, Wood told Reneau to leave his gun at home the morning of the murder. She said Reneau put the gun down but picked it back up when Wood left the room. Her testimony was not included in Wood's trial, but it was in Reneau's.

"This is the reason we have this final step by the Constitution to provide the governor the right to commute a sentence,"- State Rep. Jeff Leach, R-Plano

Prosecutors argued Wood knew Reneau would kill Keeran if he didn't cooperate with the robbery. If true, that would make him guilty of capital murder under the law of parties, which states that a person can be charged with a crime he didn't commit if he "should have anticipated it as a result" of another crime.

Leach, who ranks among the most conservative Republicans in the House, is for the death penalty in the most heinous cases, he said. And he believes in the death penalty under the law of parties in cases where the accomplice was clearly involved in the murder. But when he came across Wood's case during his work for the House Criminal Jurisprudence Committee, it didn't seem right.

"Jeffery Lee Wood's case has caught my attention unlike any death row inmate in my time in office has," he said. "Once I started digging, I couldn't stop."

Now, Leach is trying to use his voice as a lawmaker to stop the execution and change Wood's sentence from death to life in prison. He's spoken with Gov. Greg Abbott's office and the parole board and hopes to convince other legislators to send letters to the 2 before the board takes up the case on Monday, he said.

If the parole board votes to recommend that Wood's sentence be changed, Abbott can accept or reject that recommendation. Without the board's recommendation, the most Abbott can do is issue a one-time, 30-day delay of execution.

"This is the reason we have this final step by the Constitution to provide the governor the right to commute a sentence," Leach said, adding that he would ultimately respect whatever choice the board and Abbott make.

Abbott's office declined to comment for this story. The parole board has previously said it could not comment on Wood's clemency petition. In a 2008 petition, the parole board and then-Gov. Rick Perry declined to commute Wood's sentence.

Source: Texas Tribune, August 18, 2016

Executing the Getaway Driver Is a Bad Idea

Texas is poised to execute Jeffery Lee Wood next week, even though he was sitting in the car 20 years ago when his friend went into a convenience store and fatally shot the clerk. Under existing precedent, sentencing an accomplice to the death penalty is sometimes constitutional. But it shouldn't be -- at least when the accomplice doesn't intend for the crime to occur, as was almost certainly the case for Wood.

The U.S. Supreme Court made its 2 crucial decisions on the execution of accomplices some 30 years ago -- and they are now ripe for being revisited. The 1st, Enmund v. Florida, came in 1982. It was a close, 5-4 decision, with centrist Justice Byron White writing for a coalition of liberal justices.

The court struck down the death penalty for Earl Enmund, a getaway driver who had been in the car when his colleagues committed 2 murders in the course of a robbery. Under Florida law, he had been an accomplice, which subjected him to the same penalty as the murderers themselves.

White wrote that such accomplice liability was cruel and unusual punishment in violation of the Eighth Amendment. It had been "rejected by society," he said.

The decision emphasized that the defendant hadn't killed or intended to kill. "Thus his culpability is plainly different from that of the robbers who killed," White wrote, "yet the State treated them alike, and attributed to Edmund the culpability of those who killed."

The decision fell short of saying that only an actual killer could be executed, leaving room for someone who didn't pull the trigger but "intended" the death to occur. This position makes a certain amount of moral sense. If 2 people act in concert, and only 1 pulls the trigger, it's plausible to say that they are comparably responsible. But if only 1 shoots and kills, and the other had no intent of causing death -- and wasn't even present when it happened -- then the punishment for the 2 should not be the same.

Under the Enmund rule from 1982, Wood very likely wouldn't be executed. He knew the killer had a gun -- and indeed Wood urged him not to bring it on the fateful trip to the convenience store. But the prosecution didn't prove that Wood had intended the murder to occur.

Unfortunately for Wood, the Supreme Court wasn't done with this issue in 1982 -- nor was Byron White. In 1987, the court reconsidered accomplice liability in a case called Tison v. Arizona. This time, White deserted the liberals and joined an opinion written for the court by Justice Sandra Day O'Connor and joined by three other conservatives.

The court held that intent to kill was not necessary for the death penalty -- essentially rewriting the 1982 decision without acknowledging it. Then the court said that it was constitutional to execute an accomplice "whose participation is major and whose mental state is one of reckless indifference to the value of human life."

That's the standard that Texas courts applied to Wood in upholding his death sentence. Texas law still allows for the execution of an accomplice under a rule sometime called "the law of parties." The courts found that Wood was a major participant in the crime and recklessly disregarded the value of human life when it came to the events that led to the murder.

The evidence in support of that conclusion about Wood's role and attitude seems highly debatable. But that shouldn't matter. It's time for the Supreme Court to go back to the 1982 rule requiring intent to kill.

Wood's case shows why the 1987 rule is indefensible. First, a getaway driver, or any accomplice who is aware that a criminal plot is under way, like Wood, can be considered a "major participant." So that requirement is almost meaningless.

Second, anyone who participates at all in a crime involving a gun or other dangerous weapon can be found recklessly indifferent to the value of human life, as Wood was. That means that essentially any accomplice can be executed.

In short, the 1987 rule effectively erases the moral boundary between someone who intends to kill and someone who is along for the ride when someone else does the killing. Whatever Byron White may have been thinking in 1982, he had more or less reversed himself by 1987.

Today's court is gradually getting more progressive about capital punishment, exempting minors and those with reduced mental capacity. And it's long been the legal rule that the death penalty can only be applied when someone has been killed, not for other heinous crimes such as rape.

The court should now reopen the question of executing defendants who didn't kill anyone. The justices don't even have to invent a new standard -- they can just apply the 1982 ruling, and restrict the death penalty to criminals who participated in a murder with the intent to kill.

Source: Bloomberg news, August 18, 2016

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