Dana Goldstein notes that the State of Texas is planning to execute Kenneth Foster today even though everyone agrees that he didn't kill anyone: "Kenneth Foster was driving the getaway car during a teenage robbery spree, and watched his companion kill a man 90 feet away from the car where he sat. All the men involved -- including the killer -- have said murder was not a premeditated part of their evening." In Texas, though, it seems that this is good enough to get you the death penalty. If, that is, you don't have a good lawyer. That the defendant in question is black probably didn't help his case either.
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Executing the Innocent
30 Aug 2007 11:53 am
Comments (72)
The death penalty for felony murder is pretty stupid though.
Josh is correct...here in NY, for example, before the Court of Appeals basically junked the death penalty Pataki reinstated, felony murder was a capital offense.
But of course just because something is a capital offense doesn't mean (1) the state has to pursue the death penalty or (2) the jury has to give it. I do think Texas is probably far more aggressive in that regard than many other states. I doubt these particular facts would get you the death penalty in many other states.
Quite true, josh.
The hand wringing on the liberal blogs about this is because of the misrepresentation such as Matthew has done with the heading "Executing the Innocent" and his statement that this man has killed no one, as if that were the standard that must be met. It isn't.
These laws were promulgated through a democratic process by duly elected public representatives and voted upon. Not only that, in a death penalty case in Texas, the jury must unanimously agree upon death as punishment. One holds out, he doesn't die.
Bottom line is this liberal whining is not really about any perceived transgression of judicial process upon an innocent man, but is merely dishonesty to promote an agenda of abolishing the death penalty.
also, it's not simply a matter of having a good lawyer. it's a matter of having a competent lawyer who has sufficient time and resources to devote to the case. there are many good public defenders. however, public defenders are generally underpaid and stretched very thin. The average public defender will have between 100-150 ongoing cases. even john roberts counsel would be insufficient under these conditions.
Well, this isn't exactly right. Although the death penalty is available for felony murder, many states have, as part of their death penalty statute, that the death penalty isn't available for one who isn't the principal agent in the homicide. Under a statute like that (Maryland's, for example), driving the getaway car wouldn't qualify. Most states have some statutes that limit the use of the death penalty for felony murder in this or another way.
Felony murder even extends to if two people rob a convenience store and the cops shoot one, the other robber is guilty of felony murder.
I particularly note this:
Robert Black, a spokesman for the Texas governor, told the BBC News website: "Two hundred and thirty years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of self-determination."Texans long ago decided the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens.
"While we respect our friends in Europe ... Texans are doing just fine governing Texas."
Ah, swagger, bombast and bullshit. Texas: doing just fine at helping the rest of the world think the worst of Americans.
I am reluctantly forced to agree with El Viajero that "Executing the Innocent" is a pretty misleading headline, though.
It is incorrect to label this "executing the innocent" because there is no allegation that the person involved is innocent. There is some sense to the felony murder concept.
But that said, the case does reveal what nonsense the argument that the death penalty shows respect for life because it answers the greatest crime with the greatest punishment. Being the getaway driver of a robbery gone bad is not the greatest crime. This is killing someone because technically you can.
Frankly it is anyone who supports the death penalty on principled grounds that should be most offended by this kind of case. That Texas uses the death penalty the most because they like the killing aspect of it is not exactly a shock to death penalty opponents.
I'll third the sentiment that "Executing the Innocent" is a complete misrepresentation of the situation. The problem isn't that Kenneth Foster is innocent, it's that he's obviously guilty of a crime for which the death penalty is excessive (assuming it's not so in all cases).
Did he kill anybody? No. So, is he innocent of murder? Yes. Is he getting the death penalty for a murder he did not commit? Yes. Is his soul tarnished with some kind of generic guilt for driving the getaway car in a robbery? No. He's guilty, very specifically, of driving the getaway car in a robbery. However evil you may find such an activity, surely no reasonable person would assume that the death penalty is the appropriate response to that. Dude's gonna die, and you are arguing that it's totally alright, because he's "guilty." It's like when your mom doesn't punish your brother for punching you because you weren't supposed to be outside in the first place.
technically josh is right.
this is simply an example of a felony murder prosecution.
what matt hints at and what is probably true is that the man's race undoubtedly has entered into the aggressive pro-death penalty stance of the prosecution.
that is the real issue that few people want to address.
the numbers are out there and they cannot be refuted: african-americans are disproportionately given the death penalty. and in most states of the old confederacy the numbers are stunning: few, if any, whites have ever been given the death penalty for the murder of an african-american. this historical fact persists despite the history of racial violence and lynchings directed at african-americans over the years.
as someone who worked in the justice system - as a criminal defense attorney - i can swear to the fact that prosecutors routinely charge white and black defendants differently.
with identical facts, similar backgrounds, you can bet the house that a black defendant will be charged and prosecuted with a more serious charge than a similarly situated white defendant.
facts are facts. the numbers do not lie.
in fact, i would challenge anyone out there to point to a similar case in texas or any of the old confederate states where a white defendant was given the death penalty in the murder of a black victim, where the theory of prosecution was a felony murder claim. i'd be willing to bet there simply is not such a case out there.
that is the real issue.
"While we respect our friends in Europe ... Texans are doing just fine governing Texas."
By what standard?!
Actually, a commission of professors and lawyers did a very interesting study (can't remember the name), and what it found is that the death penalty is administered in a racist manner - but not in the way that you'd think. They didn't find any disparate racial treatment with respect to the race of the murderer, but with the victim. That is, they found that a murderer was more likely to get the death penalty if the victim was white than black or hispanic, but didn't find the criminal's race made much of a difference.
I read a little bit into the case, though not thoroughly and not to my satisfication. One troubling thing I found was that Foster was supposedly serving a 10-year deferred sentence received Aug. 2, 1995, on two charges of aggravated assault with a deadly weapon. Here's one link on that, there were others.
I am wondering whether that is true and if the jury knew it. Also why it has not been covered more if so.
I am anti-death penalty and certainly agree that this Texas law is absurd even if you are pro-death penalty for certain crimes, but as someone who would like to see others come around to anti-death penalty sentiments, I want to know all the facts, not just the propaganda of a prosecutor or the spin of a P.R. campaign to save the convicted, links to his poetry included (they have them on his "free Foster" site). I wonder if there wasn't something similar to jury nullification going on here, that they knew from his record he's willing to try to kill someone and was already given mercy on that once.
Rarely are these things as simple as the spinners want to make them, one of the reasons to actually be against the death penality as I see it.
Robert Black, a spokesman for the Texas governor, told the BBC News website: "Two hundred and thirty years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of self-determination.
No they didn't, Robert, you're from Texas. Your forefathers fought their war, rather later than that, in order to secede from Mexico and preserve slavery. And then, a little later on, they betrayed their oaths of office and their country, in a failed attempt to do exactly the same again.
dang. Here's the fixed link for my comment above. I hope. Yes enabling editing of comments would be nice, Atlantic.
I'm with Gordon, it's a fine title. It's a blog post, not a legal document, and Foster is innocent of murder. If driving a car to abet any illegal activity in which someone ends up getting killed (if I drove you to launder some counterfeit money...the person catches on...you end up shooting them...[it's Texas, you're packing as a matter of course]), I'm a felony murderer because counterfeiting is illegal? That doesn't even pass the laugh test.
I think El Viajero has never heard of the concept of an unjust law. If the majority of people voted to enslave a minority, he'd be fine with that, so long as it followed the procedures. Not that that would ever happen, of course.
The death penalty for felony murder is pretty stupid though.
Agreed, but so is the title of Matt's post.
I'm against the death penalty for various reasons - more due to the many inherent flaws in our criminal justice system than an 8th amendment argument, but the convict in question here does not appear to be innocent.
In addition to the felony murder points mentioned above, as a getaway driver, he satisfies the elements of any accomplice theory as a (knowing) participant in a robbery conspiracy.
NEW NEWS TIDBIT: I just heard on NPR (1:00 PM EDT) that Rick Perry has commuted Foster's sentence to life in prison!
that's good news.
Let me be clear, while I think Matt's title is misleading, I am 100% against the death penalty, so I'm glad to hear (if it's true) that Perry commuted it.
The point of felony murder charges is to prevent two (or more) of the accused from getting out of being charged with murder by blaming another member of the group involved who could have actually committed the act. Felony murder makes such defenses entirely moot.
These laws were promulgated through a democratic process by duly elected public representatives and voted upon.
You hear that, folks? In a democratic society, it is illegitimate to criticize laws! *Smashes head into desk*
NEW NEWS TIDBIT: I just heard on NPR (1:00 PM EDT) that Rick Perry has commuted Foster's sentence to life in prison!
That's good news! Now remember, El Viajero, you must praise this decision, because Rick Perry is a duly elected official! You must now be against the death penalty in this case, if you love democracy!
Regarding the question of "is this really a case of executing the innocent?":
some would argue that no-one is really innocent, and that we all have sinned and are irredeamable. While you would think that a realization of human moral frailty would lead to a certain amount of mercy, in practice what happens is quite the opposite. People say "well, even if person X didn't kill anyone, he deserves to die because he certainly must have been guilty of something if the cops arrested him".
Perhaps the mere focus on guilt or innocence can be a problem when so many people so firmly believe that just about everyone is guilty ... at least that "those people" who get caught by the cops are.
hugo,
i certainly recall the rough outlines of that study.
your point, and the study, i think, illustrate my point, on a certain level.
most homicides are committed against those of the same race. therefore, you are much less likely to face the death penalty if you are a white person who commits a heinous murder, especially if that victim is an african-american citizen.
however, if you are african-american and the victim of your heinous murder is white, the odds are much, much higher that you will be prosecuted in a death penalty case.
also, i believe that you have to look at the starting point of those prosecutions. you have to look at the initial charging decisions made by prosecutors.
is the charge going to be first degree murder or second degree or manslaughter?
is the person going to be prosecuted as an accessory after the fact or as a principal who may be liable under a felony murder theory?
are we going to offer this defendant a deal?
are we simply going to let the person walk, because they did not have the requisite knowledge and/or involvement?
are we going to investigate or prosecute at all? (see the emmit till and birmingham church bombing cases.)
these are all issues that have to be considered.
however, the numbers do not lie. african-americans are unfairly and disproportionately given the death penalty. for an entire host of reasons.
as they say about baseball stats, you can look it up.
I don't see anyone arguing that the guy isn't guilty of felony murder, so I don't understand how Matt's headline can be anything but false. Let's save "Executing the Innocent" for the people who actually are innocent of the crimes they've been convicted of.
Of course that doesn't change the fact that the death penalty is an outrageous punishment for the crime. All the more reason not to give people a reason to dismiss your arguments by adding inflammatory and misleading headlines.
"All the men involved -- including the killer -- have said murder was not a premeditated part of their evening."
I wonder if all the men involved -- including the killer -- might have a motive for saying that murder was not a premeditated part of their evening.
"So, is he innocent of murder? Yes."
Wrong, he's clearly morally culpable for the death of someone, in at least a contributory way. I'm against the death penalty, but this is not the best case to hang that opposition on.
Sentence commuted to life in prison.
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/083107dntexexecution.8544bf20.html
Matt needs to go to law school.
(It's inevitable anyway.)
I agree with many above.
Matthew, this guy isn't "innocent" and your headline is misleading.
Complain that the law is stupid and/or draconian. Argue that the death penalty, in this case or in ANY case, is inhumane. But don't hype the story with falsehoods that this man is "innocent". The statute is on the books, and given your recitiation of the facts, he clearly violated the statute.
If driving a car to abet any illegal activity in which someone ends up getting killed (if I drove you to launder some counterfeit money...the person catches on...you end up shooting them...[it's Texas, you're packing as a matter of course]), I'm a felony murderer because counterfeiting is illegal? That doesn't even pass the laugh test.
There are PLENTY of cases where is passes the laugh test with flying colors and, while I could be wrong, I'm sensing some serious intellectual laziness and double-standards here.
What doesn't pass the laugh test is participating in an armed robbery and then acting like you are totally surprised that someone ended up getting killed!
People are responsible for the predictable consequences of their actions and it is obviously predictable that an armed robbery has a reasonable chance of triggering a chain of events where someone gets killed, even if you didn't intend or plan on it happening.
People are responsible for the predictable consequences of their actions!
The standard is simple and it doesn't just apply to Republicans and Iraqi civilian casualties!
Gordon,
You write: He's guilty, very specifically, of driving the getaway car in a robbery.
Not really, he's guilty, at a minimum, of collaborating (assisting/aiding/abetting) an accomplice who was using a firearm to commit a felony which involved a high likelihood of the use of deadly force.
The theory of felony murder is partly based on the notion that such criminal behavior involves a significant likelihood (which mitigates the usual notion of premeditation, because, imputed into the knowledge element here, is that with gun play, the suspect is upping the odds of a violent outcome) of the possibility that the gun will discharge and major bodily injury and/or death will follow.
You drive around someone with a gun on a "robbery spree," and you are culpable for much more than just being the "getaway driver." The gunman would not have been able to shoot and kill who he did without this guy's help.
He's much more than merely some hired taxi.
Having said that, I'm very glad his sentence was commuted, for several reasons, including the fact that according to the story, it was a "teenage robbery spree."
So, so tired of Texas.
dude, this is one area where the MSM has an advantage..they usually talk to lawyers before publishing shit like that.
felony murder is on the books in almost every state and is a capital crime in capital states.
duh.
the logic is simple...he knew someone could get killed when he assisted in an armed robbery. that's sufficient.
People are responsible for the predictable consequences of their actions
Hold still ... keep your keyboards in the air where I can see them. This is a thread-jacking. Stay calm and nobody gets hurt ;)
Yes ... allow me to jump way off-topic with a thread jack: to what degree (e.g. beyond Iraq war supporters and the case at hand) does the statement "people are responsible for the predictable consequences of their actions" apply?
Suppose my fiancee had some condition that predisposed her to miscarry (for the record, she does not have such a condition to either of our knowledge). Suppose also that the anti-choice people carried the day and the willful killing of a fetus (i.e. abortion) is made illegal. If my soon-to-be wife got pregnant, would I be guilty of a crime? After all, fetal death would be a predictable consequence of me having un-protected sex with a woman who is predisposed to miscarry ...
I wonder how many people in TX who figure this guy should be sentanced to death based on the statement "people are responsible for the predictable consequences of their actions" are anti-choice? I wonder how many have thought that through? Of course, I wonder for how many of them, this statement stops being operative when it comes to them personally or, e.g., Congresscritters who voted to give the President the power to invade Iraq?
This isn't the first, and probably not the last, post in which Matt has been really confused about a legal topic.
an analogy for those who can't comprehend felony murder:
imagine I walk down the street spraying bullets wildly. it doesn't matter whether I intend to kill any specific person or even aim at anyone, if I kill someone I'm on the hook for murder...the common law phrase is "wanton disregard for human life" or somesuch. if you engage in an armed robbery....you're on the hook if someone dies in a forseeable fashion.
DAS:
pregnancy isn't a crime.
I could be wrong, I'm sensing some serious intellectual laziness and double-standards here.
Hard to tell, unless you actually provide an argument to back up the accusation (not that I'm calling you lazy, or anything).
I know the theory of felony murder (broad strokes, anyway), i'm just saying it sucks. If I drive you to buy a carton of cigarettes, and I know that you hate the clerk, and further that you're in a bad mood and a little loose to begin with, it seems I should be guilty of felony murder if you get in an argument and shoot him (by the theory). There was a known risk of it happening, after all.
Armed robbery is not a capital crime. Abetting armed robbery is not a capital crime. Murder is (in Texas). Abetting murder also is. If I drive someone to rob a place and I drive someone to murder a person, I'm supposed to accept that there's no distinction?
What doesn't pass the laugh test is participating in an armed robbery and then acting like you are totally surprised that someone ended up getting killed!
No, I'd be totally surprised to find out that I killed them.
Of course, I wonder for how many of them, this statement stops being operative when it comes to them personally or, e.g., Congresscritters who voted to give the President the power to invade Iraq? - DAS
DAS,
I'm sure plenty of them, but I don't see their hypocrisy as a reason to become a hypocrite myself. I won't use the actions of people I dont respect to justify acting likewise.
Go ahead and oppose the DP on principle but don't try to argue that a guy who knowingly drove his friends around to stick-up people doesn't share responsibility for the people who ended up getting killed during the actions.
How can someone think that opinion writers who wrote in favor of the Iraq war share blame for the resulting deaths but a guy who actually drove his friends around to rob people at gunpoint does not share responsibility for the people his friend killed?
It seems like some people feel the need to reflexively oppose "Texas executing a black man" on ANY and EVERY possible ground, even if it means ignoring principles they say they care about in other settings.
I know the theory of felony murder (broad strokes, anyway), i'm just saying it sucks.
You're swimming against the tide of pretty much the entire legal establishment here, nolaboyd. And most people who understand the concept of 'felony murder'.
What that has to do with the story, Matt's misleading headline, or Perry's commutation, is beyond me. Are you saying that Foster bears zero responsibility for the death that was caused by his accomplice in armed robbery? As a moral issue?
I know the theory of felony murder (broad strokes, anyway), i'm just saying it sucks.
I think it depends on the circumstances.
If I drive you to buy a carton of cigarettes, and I know that you hate the clerk, and further that you're in a bad mood and a little loose to begin with, it seems I should be guilty of felony murder if you get in an argument and shoot him (by the theory). There was a known risk of it happening, after all.
PLEASE! People interact with others they dislike all the time without murdering them - and buying a carton is NOT illegal.
Unless you know your friend has a history of violent psychotic behavior it is NOT usually "predictable" that a legal commerical interaction between two people who don't like one another will result in murder.
Don't compare buying a carton from a guy you dont like to putting a loaded gun in someones face and telling them "Give me your money or Im gonna kill you!". The potential for violence is OBVIOUSLY QUITE DIFFERENT! Simply taking a guy to a place where they will meet someone they dont like is NOT even close to agreeing to commit a crime where loaded weapons are going to be used to threaten people.
This is why we have trial by jury and not trial by philosopher - because these kind of differences are obvious to people when they are not trying to prove a point to "win" an "argument".
dude, felony murder requires an underlying felony (and not just any felony either). stop using inapposite analogies like pregnancy, buying cigarettes and the like.
If I drive someone to rob a place and I drive someone to murder a person, I'm supposed to accept that there's no distinction?
If the person you are driving to rob a place has a deadly weapon - and you know that s/he does - and then that person kills someone with that weapon in the commission of the robbery - then it doesn't matter what you accept. In almost all states the law says you would be a felony murder accomplice.
The law is designed that way, fairly in my opinion, for several reasons including discouraging you (and others) to drive someone to rob a place, especially if s/he has a deadly weapon.
Hard to tell, unless you actually provide an argument to back up the accusation (not that I'm calling you lazy, or anything).
Basically, I'm assuming (and I could well be wrong) that many of the people disagreeing in principle with the "felony murder" concept actually do apply the logic of felony murder in other cases - For example, believing that writers and others who even "advocated" for the Iraq war share responsibility for the deaths caused by the war.
I was once told that I "had blood on my hands" because in 02-03 I, as a private citizen with no vote in congress, supported the decision to invade Iraq. I agreed with her. Well, by the same criteria I think a person who didn't just "supported" a violent crime, but actively helped assist it, is ALSO responsible for the deaths the resulted.
Frankly, I think that if a bunch of rich, white, frat boys decided to go run around grabbing the tits and asses of various random women and, during the course of this, one of them ended up full-on raping a woman, most of the people here would agree that the whole group shares responsibility for the rape and that "but I only intended to grab a little bit o' tits n' ass!" would NOT fly as a defense. Especially amongst erstwhile progressives!
You're swimming against the tide of pretty much the entire legal establishment here, nolaboyd. And most people who understand the concept of 'felony murder'.
No, actually, I think the felony murder doctrine has come into increasing disfavor with the legal establishment over the years. Back in my days at the Parole Board the vast majority of meritorious commutation requests involved over-punishment of felony murder defendants.
Are you saying that Foster bears zero responsibility for the death that was caused by his accomplice in armed robbery? As a moral issue?
I doubt anyone thinks he has zero culpability. He took part in an armed robbery, and someone wound up dead. But I don't think it's nearly as depraved as committing murder, and I don't think the law should punish the two acts the same way.
I think the felony murder doctrine has come into increasing disfavor with the legal establishment... I doubt anyone thinks he has zero culpability. He took part in an armed robbery, and someone wound up dead. But I don't think it's nearly as depraved as committing murder, and I don't think the law should punish the two acts the same way.
Interesting. It raises an argument, I think, about the extent to which punishment should be sized as a deterrent as well as literal punishment that fits the crime. Intuitively I have no problem with the concept that when you participate in the crime, you are fully responsible for the consequences of the crime--a 'thin skull rule' of sorts. In the case of Kenneth Foster, I have no problem with him suffering the same penalty as the guy who pulled the trigger, just insofar as he was facilitating the pulling of that trigger (and ignoring that I think that the death penalty is wrong).
"No, actually, I think the felony murder doctrine has come into increasing disfavor with the legal establishment over the years."
....but its still the law. It may be disfavored in certain circles, but that hasn't resulted in any changes to the actual laws.
And anyways, most of the disfavor directed at felony murder has to do with cases where the death was many steps removed from the crime. Cases where during an armed vehicular theft, an accident occurred due to the police chase, and due to the accident an EMS worker arrived and was hit by a bus. Those are the disfavored cases.
Participating in armed robbery where someone is killed is pretty classic, as far as felony murder goes.
I was one of the first to criticize the headline. But to suggest that this shows that Yglesias doesn't understand the law is even sillier. His post makes clear that he is not claiming that the conviction violated Texas law. Yglesias is guilty of sloppy headline writing. (And here was probably abetted by many others who were as sloppy with their headlines to the same story. I first saw it on a post over at Huffpost).
But pointing out an inaccuracy does not provide cover for ones own blatant inaccuracy.
Participating in armed robbery where someone is killed is pretty classic, as far as felony murder goes.
It's just hard to accept that someone who didn't intend for a death to occur is equally as culpable as someone who did intend for a death to occur.
It's just hard to accept that someone who didn't intend for a death to occur is equally as culpable as someone who did intend for a death to occur.
I don't think the state is saying he is, the state is just saying that he is culpable enough to warrant the death penalty. That Ted Bundy or Timothy McVeigh or whomever gets the death penalty doesn't mean that anyone short of their culpability doesn't also warrant that penalty.
I don't think anyone warrants the death penalty, but if you feel otherwise, I don't see the logic in thinking every candidate has to be equally monstrous or culpable.
t's just hard to accept that someone who didn't intend for a death to occur is equally as culpable as someone who did intend for a death to occur.
Under certain circumstances, like driving the getaway car for an armed robbery, I have no problem accepting equal culpability despite the lack of intent or direct action. In my mind, it comes down to liability for foreseeable consequences of bad acts.
To put it differently, when you participate in an armed robbery, you accept the risk that someone's going to get shot; accepting that risk is what transfers liability for the path of the bullet. It's the same moral liability by accepting risk as if you closed your eyes and fired a gun randomly around you without regard for likely injury or death.
The law is designed that way, fairly in my opinion, for several reasons including discouraging you (and others) to drive someone to rob a place, especially if s/he has a deadly weapon.
Which obviously worked so well here.
Good for Gov. Perry. I bet he spent more than fifteen minutes on the case.
Which obviously worked so well here.
Depending on how you define "worked," it worked just fine.
Personally, I'm against the death penalty and happy with the the governor's decision.
This guy is still in prison for life, though - which is hardly a light sentence - especially for someone who was "merely" a "getaway driver" for a robbery - and that's because of, not despite, the felony murder law.
Felony murder laws and corresponding sentencing options/guidelines are related but still distinct concepts. Obviously not everyone found guilty of felony murder gets sentenced to death, and some states don't have the death penalty anyway, thankfully - and many with the death penalty on the books rarely exercise it.
But to just counter your snark, as for the element of deterrence built into most statutes/sentencing guidelines, if deterrence as a concept was 100% effective, there would be no such thing as criminals or crime.
That doesn't mean we shouldn't have laws designed, in part, to minimize crime and criminal enterprises.
Many people break the law - for a variety of reasons - knowing full well what the consequences will be if caught by the police, prosecuted and convicted.
It's just hard to accept that someone who didn't intend for a death to occur is equally as culpable as someone who did intend for a death to occur.
Once again it depends - mostly on the likelihood of the "unintended" consequences.
At a certain point the "unintended" consequences become so likely that the lack of "intention" doesn't matter much because the person should have known that, intended or not, they were a serious possibility.
It's just hard to accept that someone who didn't intend for a death to occur is equally as culpable as someone who did intend for a death to occur.
Just arguing for the sake of discussion - not this particular case - but a typical armed robbery/felony murder fact pattern.
As for the issue of intent.
Two people want to rob a 7-11. They decide together that the best way to do it smoothly and quickly is to point a gun in the clerk's face. They then decide that - for whatever reason (say that in case they run into trouble, and are chased by cops, etc..) they want the gun to be loaded.
Then they decide that one of them will be the driver and one of them will be the gunman - so that they aren't both running towards the car, and that they can get away as quickly as possible. They flip a coin to decide who will do what.
So they pick a store and go - the driver parks outside and his partner goes in, pulls a gun on the clerk and tells him to hand over the money. Turns out there was a cop on the other side of the store at the donut rack, he hears the commotion in the front, runs up there, pulls his gun and tells the gunman to drop his weapon.
The gunman turns, but doesn't drop his weapon, and the cop takes a shot, and misses. The gunman fires and hits the cop, killing him. Totally panicked and knowing he just killed someone with a witness, he wheels around and kills the clerk.
What should the partner/driver be charged with?
Just robbery?
Just accomplice to robbery? He didn't technically rob the store, either.
Wikipedia's discussion of felony murder is quite complete: http://en.wikipedia.org/wiki/Felony_murder
"At a certain point the "unintended" consequences become so likely that the lack of "intention" doesn't matter much because the person should have known that, intended or not, they were a serious possibility."
Speaking about the German concept of "intent", it says when a certain consequence of your intended action is so likely that you can not seriously hope to avoid it, and you act anyway, then this shows your indifference towards this consequence and then you act, in fact, with "intent" as defined by law.
But the more important point here is that in an armed robbery, the chances that somebody gets killed isn't so great that this threshold would be reached. I mean, I don't know American statistics, but I would assume that, even in the US, most armed robberies end without somebody getting killed, no?
I mean, would you say that somebody who makes a risky manouvre in traffic which ends in somebody getting killed in an accident (a "serious possibility"!) should be treated just like somebody who shoots somebody else in the head?
It seems unfair that the getaway driver receives the same penalty as the actual killer in cases like this. However, the getaway driver qualifies for the same penalty as the actual robber in cases where the armed robbery does NOT result in a homicide.
The analogies with counterfeit and cigarette cartons aren't valid comparisons, because most states' felony murder rules require that a reasonable person would believe that a death would be likely to occur. Participating in an armed robbery where loaded weapons are involved, while not the same morally as pulling the trigger, clearly qualifies under this standard.
I only wish the jury had shown a bit more discretion.
Disclosure - Yesterday, I watched a 12 person Texas jury convict and sentence a man to life in prison for murdering my father. Ironically, hacking a 61 year old man's skull to pieces is not a capital crime in Texas, but driving the getaway car in a robbery with an unintended death is. Yeah I agree the rules don't seem fair, but I would have expected the jury to show some discretion in this Foster case.
Shane,
Jesus. I'm sorry to hear that.
I mean, would you say that somebody who makes a risky manouvre in traffic which ends in somebody getting killed in an accident (a "serious possibility"!) should be treated just like somebody who shoots somebody else in the head?
What a silly comparison. Your risky maneuver is not illegal in and of itself. And there's a world of difference between the possibility of causing an accident and the likelihood that someone will get shot if you 1) take a loaded gun, and 2) use it to threaten someone. 3 is an obviously forseeable next step. It's not the statistical probability that counts as much as the internal logic of the situation you create playing itself out.
My condolences to you and your family, Shane.
Shane,
That's so awful.
Your father sounds like a very heroic man.
My deepest condolences.
Patrick - And anyways, most of the disfavor directed at felony murder has to do with cases where the death was many steps removed from the crime. Cases where during an armed vehicular theft, an accident occurred due to the police chase, and due to the accident an EMS worker arrived and was hit by a bus. Those are the disfavored cases.
Agree that is a big problem, as certain aggressive prosecutors are stretching the causal cahin of events to tag major criminal culpability on people who had absolutely no involvement in events that led to injury or death
as they did a midemeanor. The classic is now the "hero cop" that decides to do a high speed car chase or drive 100 miles an hour to a report of a bar fight and kills himself in a crash or someone else with bad driving. In an effort to make the "hero" blameless, prosecutors try rehabbing the cop (and ducking city or state liability) by blaming the bar patron, the two in a domestic dispute, or the kid trying to outrun the cops because he has dope in his car for murder.
That is where some States are saying the causal chain is stretched by State head-hunting cops and prosecutors too far to end events no reasonable person could expect such outcomes occuring from their law-breaking.
That gets into accident theory - that a person may be responsible for harming someone, breaking a law like an unsafe lane change, but not criminally responsible.
With other group felonies - it is reasonable to assign group responsibility based on several factors (1)The planned crime required all participants; (2)A possibility existed that since force was being threatened or used, that serious injury or death could occur incidental to the planned felony; (3) That the non-triggermen, non-rapists in the group did nothing to stop the escalation of the crime, prevent the higher than planned crime from occuring; (4)That they did not immediately call a lawyer after the crime went very bad in a way they didn't expect - and try for a deal to turn in the murderer, rapist, etc. in return for a lighter sentence.
It is with these main factors in mind that most societies elect to hold all participants in proximal cause - as collectively responsible and all crimes and punishments applicable to all. It is an effective deterrent, it is a threat that will solve some crimes by an informant with involvement that wishes to escape a gun, rape, serious assault, murder rap.
according to the story, it was a "teenage robbery spree."
Don't be misled here. It happened in 1996 and Mr. Foster is 30, so he would have been about 19 years old. Still technically a teenager, but also a legal adult, and responsible for his actions. Plus, it was a spree. Not an isolated crime, a crime spree.
With the thousands of actually innocent people sitting in prisons, I'm not going to waste much time feeling sorry for this guy. Still, I think the gov. did the right thing.
"What a silly comparison. Your risky maneuver is not illegal in and of itself"
Oh, it very well might be. I'm thinking of gross speeding, or overtaking where your aren't allowed to for safety reasons.
"And there's a world of difference between the possibility of causing an accident and the likelihood that someone will get shot if you 1) take a loaded gun, and 2) use it to threaten someone.3 is an obviously forseeable next step."
Not neccessarily. That very much depends on the situation at hand. And if an "obviouly forseeable" possibility is enough for intent, than the seperation between intent and (gross) negligence disappears.
"It's not the statistical probability that counts as much as the internal logic of the situation you create playing itself out."
Again: If most armed robberies happen without someone being killed, you can not simply brush it aside when the guy says that it was only intended to use the weapon for threatening, and not for killing (if we believe him, that is). For intent, you have to show that the guy could not seriously expect that there would be no killing.
It is for a reason that the concept of "felony murder" was invented: They want to punish someone for murder without (having to proof) intent.
In my view, this concept simply goes to far. If you can proof intent, fine. If you cannot, then negligent homicide (for helping to create a situation where murder is a serious possibility) is enough, I think.
Killing someone with your own hand and participating in an armed robbery where you had to know that there could be a murder is not the same, and punishing both in the same way is not just.
It's kind of interesting that everyone is arguing about whether we did right or not by poor old Mr Foster. The fact is, the dead innocent person is DEAD. They don't get a second chance. They don't get their death sentence commuted. Their family is stuck with all the pain and suffering that accompanies the crime. But as long as we're not overly nasty towards Mr Foster, it's ok.
BTW, how is keeping someone in a little box for 40-50 years until they die much different from killing them right away?
Comments closed September 13, 2007.
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Heads in the Sand
This really isn't a question of Texas' overzealous reliance on the death penalty. It is simply a product of the doctrine of felony murder, which is the charge holding the defendant criminally liable for any deaths that during or in furtherance of the commission of a felony. My understanding is that Foster was alleged to have been and found guilty at trial of having been the getaway driver in a robbery (felony) that resulted in deaths.
Virtually every state in the country has some form of the felony murder law on the books. As in the Foster case, it is a draconian measure. But, for once, it's not an issue limited solely to Taxans love to kill people.
Posted by josh | August 30, 2007 12:07 PM