Law of Parties
The law of parties is a theory of vicarious liability that allows defendants to be held criminally liable for offenses committed by others, as if they had committed the offense themselves. In Texas, this statute has been used to convict persons of capital murder and impose death sentences, even when the defendant did not kill or intend to kill another person.
Generally, to obtain a capital murder conviction in Texas, a jury is required to find that a person committed an intentional or knowing murder. Texas, however, allows for the law of parties to depart from the intent requirement. For example, a defendant who enters a conspiracy to commit one felony, like burglary, may be held liable for an intentional homicide committed by a co-conspirator, notwithstanding that the defendant had no intention that any person would be harmed.
Of 52 jurisdictions, including Washington, D.C., and the federal government, 36 have issued legislative or judicial decisions rejecting imposition of the death penalty for people who neither killed nor intended to kill.  According to the Death Penalty Information Center
, it is aware of only 11 individuals who did not intend to kill and have been executed in the modern era.
When the Supreme Court originally upheld the constitutionality of Texas’s death penalty scheme in 1976’s Jurek v. Texas, it did so under the premise that a defendant would be death eligible only if he intended to commit a homicide. The holding was based on the then-new Texas Penal Code, which “narrowed the scope of its laws relating to capital punishment.” Specifically, the Supreme Court understood the Texas Penal Code in effect at that time to “limit capital homicides to intentional and knowing murders committed in five situations: murder of a peace officer or fireman; murder committed in the course of kidnapping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder committed by a prison inmate when the victim is a prison employee.”
The decision was also based on a sentencing procedure that differed from the current one. Following a guilty verdict for a capital murder charge, the jury must consider special issues to determine whether the defendant will receive a life sentence or the death penalty. Under the law at the time that Jurek was decided, Texas juries were required to find, before a death sentence could be imposed, that “the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.” The Supreme Court in Jurek observed that, although Texas had not adopted a list of statutory aggravating circumstances, the existence of which can justify the imposition of the death penalty (as other states had done), “its action in narrowing the categories of murders for which a death sentence may ever be imposed serve[d] much the same purpose.”
Today, the statute has changed. As former Texas Court of Criminal Appeals Judge Alcala recently observed in Ex parte Murphy,
The capital-murder statute provides for around one hundred different ways that a person can be convicted of capital murder. The list of ways in which a person may commit capital murder is twice as long when one considers that a defendant may be convicted not only as a principal actor, but also as a party by, for example, aiding or attempting to aid another person to commit the offense. And the list is thrice as long when one considers that a defendant may be convicted of capital murder even if he lacked any intent to commit that offense but was part of a conspiracy to commit a felony under certain circumstances.
When the Supreme Court decided Jurek, it did not consider the impact of Texas’s law of parties when it held that Texas’s death penalty scheme protected against arbitrariness. Indeed, it understood the scheme to be limited to those who “intentional[ly] and knowing[ly]” committed murder. Moreover, the decision was also based on a sentencing procedure that differed from the current one. Specifically, the special issues then required the jury to find, before a death sentence could be imposed, that “the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.” That special issue effectively precluded persons who did not intend to commit murder under the law of parties from being sentenced to death because it required the jury to find both that the individual caused the death and that the conduct causing it was deliberate. That special issue was repealed in 1993, and the Texas scheme no longer requires a jury finding that the conduct of the defendant that caused the death of the deceased was committed deliberately. Under current Texas law, after a defendant has been found guilty as a party to an offense, he can be sentenced to death for merely “[a]nticipating that a human life will be taken.” As former CCA Judge Alcala has observed, this standard does not meet the level of culpability needed constitutionally to impose a death sentence.
The Supreme Court has addressed the constitutionality of the death penalty for people who did not kill or intend to kill in Enmund v. Florida and Tison v. Arizona. The rule created by these cases prohibits the imposition of the death penalty on such defendants unless the defendant was a “major participant” in felonious activity and displayed “reckless indifference to life.” Nevertheless, Texas’s law of parties permits juries to give death sentences to people without regard to whether they killed, intended to kill, were major participants in felonious activities, or displayed a reckless indifference to human life—all in clear violation of the Eighth Amendment.
It has been long recognized that the death penalty should be reserved “for the worst of the worst.” Texas, however, applies the law of parties in a way that so broadens the categories of behavior eligible for a death sentence as to render its capital punishment arbitrary. When Tison was decided, the Supreme Court took into consideration its belief that the majority of American jurisdictions authorized the death penalty where accomplices had at least a reckless disregard for life and were major participants. Now, that is no longer true. Societal consensus and the outcomes of capital trials show decreasing interest in the death penalty and death sentences for those who never killed or intended to kill, further supporting the need to eliminate the power of prosecutors to obtain death sentences premised on Texas’s law of parties, which permits convictions for capital murder without the State proving an intent to kill.
 See Joseph Trigilio & Tracy Casadio, Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing, 48 Am. Crim. L. Rev. 1371, 1374, 1401 n.280 (2011) (identifying thirty-three jurisdictions in 2011, including the seventeen jurisdictions had banned the death penalty for everybody). Since the publication of the article, five more states have abolished the death penalty, but before abolition, two of those jurisdictions did not permit executions of people who did not kill or intend to kill.
 Ladd v. State, 3 S.W.3d 547, 573 (Tex. Crim. App. 1999) (emphasis omitted).