Should murder accomplices face execution?

By John Gramlich, Stateline.org Staff Writer

An execution last month in Mississippi and another scheduled for this month in Texas have reignited a debate over whether the death penalty should be given to those who participate in killings — but do not personally carry them out.

Dale Bishop was executed July 23 in Mississippi for his role in the 1998 murder of an acquaintance who was beaten to death with a claw hammer along a rural road near Tupelo. But Bishop did not strike the fatal blows. According to uncontested trial testimony, Bishop held and kicked the victim while another man, Jessie Johnson, fatally attacked him with the hammer. Johnson is serving a life sentence without parole.

Photo courtesy of Gloria Rubac, Texas Death Penalty Abolition Movement Demonstrators outside the Alamo in San Antonio protest the scheduled Aug. 21 execution of Texas death-row inmate Jeffery Wood, who faces the death penalty for a 1996 murder despite not carrying it out himself. Wood was convicted under the state’s “felony murder rule,” which allows some accomplices to be prosecuted for first-degree murder.

In Texas, death-row inmate Jeffery Wood this month also could be executed for a murder he did not commit. Wood is scheduled to die Aug. 21 in connection with the 1996 shooting of a convenience store clerk about 100 miles west of Austin, but according to undisputed court testimony, he was sitting in a pickup truck outside the store when the murder occurred. Daniel Reneau, who shot and killed the clerk, was executed by Texas in 2002 for the murder.

Bishop and Wood both were convicted under little-known state laws that allow accomplices in some felonies that result in murder to be prosecuted as killers — even if they were not directly responsible for killing anyone.

The laws are part of a broader legal principle in the United States known as the “felony murder rule,” which also allows those who unintentionally kill someone during serious felonies to be charged with first-degree murder, instead of the lesser charge of involuntary manslaughter. All but four states — Hawaii, Kentucky, Michigan and Ohio — have some version of the felony murder rule, according to a February analysis commissioned by the Connecticut General Assembly.

DEATH FOR NON-KILLERS?

The following states allow prosecutors to seek the death penalty for those not directly responsible for murder: Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Idaho Illinois Indiana Kansas Mississippi Montana Nebraska Nevada New Mexico North Carolina Oklahoma South Carolina South Dakota Tennessee Texas Wyoming

Source: Death Penalty Information Center

Of the 46 states with the felony murder rule, 24 allow prosecutors to use it to seek the death penalty for those not directly responsible for murder, according to the Death Penalty Information Center, a nonprofit organization that opposes capital punishment.

But the center says it is very rare for states to execute accomplices: by its tally, Bishop became only the eighth person in the past 30 years — and the first since 1996 — to be put to death for a murder he did not commit or order (such as commissioned killings, which are counted separately). Wood, in Texas, would become the ninth.

Civil libertarians, trial lawyers and others have attacked the felony murder rule as an egregious example of unequal justice — particularly when it involves the ultimate punishment for accomplices. While the U.S. Supreme Court in the 1980s upheld the death penalty for accomplices if they intended their crimes to result in death or displayed “reckless indifference to human life,” critics of the rule say it is often impossible to know the intentions of criminals and that it can result in overly tough sentences. Murder accomplices like Bishop, they say, should never receive tougher penalties than those actually responsible for murder.

But supporters of the rule say states should be authorized to execute felons who knowingly participated in dangerous crimes in which death is a likely and often foreseeable outcome, such as burglary, robbery and rape. Many backers say it can serve as a deterrent to committing such crimes.

In Texas, lawyers are frantically trying to persuade the state Board of Pardons and Paroles and Gov. Rick Perry (R) to spare Wood, who had no prior criminal record. His legal team contends that he has “emotional and psychological impairments” that prevented him from receiving a fair sentence, noting that he did not challenge the death penalty during the punishment phase of his trial.

RELATED: Click here to read Texas death-row inmate Jeffery Wood’s application to the state to be spared from his scheduled execution Aug. 21.

Wood’s lawyers also are comparing his case to that of Kenneth Foster, another Texas murder accomplice who was scheduled to be executed last year. In that case, Perry took the highly unusual step of commuting Foster’s sentence to life without parole, expressing concern that Foster had been tried simultaneously with his co-defendant, who actually committed the murder.

Scott Cobb, director of the anti-death penalty Texas Moratorium Network and an organizer of public rallies in support of Wood and against the state’s felony murder rule, said he hopes authorities will spare the inmate. He said he is encouraged because Perry has proven to be “in tune with public opinion, and he’s aware that public opinion doesn’t support killing someone who has such a diminished role as an accomplice.”

But others are pushing for the execution to proceed. The prosecutor who won the capital conviction against Wood, Kerr County Assistant District Attorney Lucy Wilke, has petitioned the state Board of Pardons and Paroles to deny his request for commutation, calling Wood the “mastermind” of the convenience store robbery and murder.

In Mississippi, the debate over the felony murder rule reached a new pitch last month ahead of Bishop’s execution, particularly as critics of the law pointed out that the actual murderer in the case was spared from the death chamber. Bishop’s execution drew national attention for that reason, and even crime-novel author John Grisham weighed in.

“He should be given life without parole in a maximum-security unit, and perhaps he could serve his time with the man who pulled the trigger,” Grisham said in a statement on his Web site.

The debate in Mississippi was further complicated by Gov. Haley Barbour’s (R) highly controversial decision last month to release a convicted killer, Michael Graham, whose good behavior behind bars earned him the right to work as a “trustee” at the governor’s mansion. Capital punishment opponents and others lambasted Barbour for granting a reprieve to Graham — who shot his wife to death in 1989 — while refusing one for Bishop.

“The juxtaposition of one man who did not kill being executed and another man who did kill being pardoned just stuck in people’s craw,” said Warren Yoder, executive director of the Public Policy Center of Mississippi.

But Pete Smith, a spokesman for Barbour, stressed that the governor neither pardoned Graham nor commuted his sentence. “What he did,” Smith said in a telephone interview with Stateline.org, “was issue an indefinite suspension of the sentence” that can be revoked anytime Graham violates the conditions of his release. Smith said the governor, a capital punishment supporter, had no comment on his refusal to spare Bishop.

Beyond Mississippi and Texas, disagreement over the felony murder rule persists, with grassroots organizations calling for changes in the law, especially after tough sentences draw public attention.

In Florida, for example, the case of 25-year-old Ryan Holle has served as a rallying cry for opponents of the rule. Holle is serving a life sentence without parole for loaning his car to a friend in 2003; along with three other men, the friend drove the car to a house where one of them murdered an 18-year-old girl.

But many prosecutors and victims’ advocates say cases like Holle’s are far from the norm, and they argue that the felony murder rule is an important tool allowing prosecutors to punish criminals who participate in exceptionally dangerous crimes.

“What do you think is going to happen when a guy goes into a convenience store to rob it and he’s armed with a gun, and your job is to help him commit that crime?” said Mary Lou Leary, executive director of the National Center for Victims of Crime. “It’s a very high-risk activity.”

See Related Stories:
No end in sight to death penalty wrangling (7/31/2008)
Fairness of death penalty panels questioned (5/2/2008)
Supreme Court upholds lethal injection (4/17/2008)
Justices weigh lethal injection (1/7/2008)
High court to hear lethal injection case (1/5/2008)
N.J. latest to try death penalty repeal (12/11/2007)
Supreme Court stops Mississippi execution (10/31/2007)
Lethal injection moratorium inches closer (10/18/2007)
Lethal injection goes on trial, but goes on (9/26/2007)
Neb. legislator fights death penalty to the end (8/17/2007)
Executions halted as doctors balk (3/21/2007)

Contact John Gramlich at jgramlich@stateline.org.