Executing the getaway driver is a bad precedent

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 two crucial decisions on the execution of accomplices some 30 years ago -- and they are now ripe for being revisited. The first, 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 two 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 two people act in concert, and only one pulls the trigger, it's plausible to say that they are comparably responsible. But if only one 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 two 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.

QuickTake Lethal Injection

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.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."