Garcia was sentenced to death under the ‘law of parties’, which his lawyers argue is unconstitutional
The horror of the crime is not in doubt: a notorious gang of heavily-armed prison escapees shot a police officer 11 times and ran over his body.
What is questionable is the fate of Joseph Garcia, who is set to be put to death in Texas on Tuesday even though he insists he did not fire a shot.
If the 47-year-old’s last-ditch appeals fail, his death will add to an uptick in the number of Texas executions in a year in which Donald Trump repeatedly threw his weight behind a form of punishment that has declined in the US in recent years.
Garcia argues he did not kill or intend to kill Aubrey Hawkins and prosecutors were unable to prove the identities of the shooters. Still, he was sentenced to die under Texas’s “law of parties”, which in some situations enables people to be held responsible for murders they did not personally commit.
Garcia has launched a flurry of appeals, including claims of ineffective counsel and questioning the quality of the state’s lethal injection drugs. BuzzFeed News reported that the Texas prison system, which shrouds the sources of its drugs in secrecy, has bought supplies from a pharmacy with a disturbing safety record.
His legal team hopes the US supreme court will decide that the law of parties, which is unusually broad in Texas, violates the ban on cruel and unusual punishments in the eighth amendment to the US constitution.
The supreme court affirmed in 1987 that defendants can be put to death even if they did not kill or intend to kill, but Garcia contends that public and legal opinion has since evolved towards a narrower view of when the death penalty should be applied; capital punishment for juveniles, for example, was banned in 2005.
“At this point there is a consensus against the death penalty in circumstances such as those in this case,” said Mridula Raman, Garcia’s lead counsel. “You’re punishing someone with death for a crime that they neither themselves committed nor intended to commit so how is that serving a deterrent value?… [The country is] supposed to reserve the death penalty for only the worst of the worst.”
Trump, though, has named two highly conservative justices to the US supreme court, shifting its ideological balance to the right. “I think some of the justices are too new to the supreme court for us to have a good sense of where they may come out on some of these issues,” Raman said.
Trump’s stance has long been clear. He took out full-page advertisements in New York newspapers in 1989 calling for the death penalty for the “Central Park Five”, black and Latino teenagers who were accused of assaulting and raping a jogger but exonerated years later.
As a politician he has repeatedly backed capital punishment for crimes such as terrorism and the killing of police officers. After the mass shooting at a Pittsburgh synagogue in October he said that “we have to bring back the death penalty” (which, in fact, is still on the books federally and in 31 states). In March, addressing the opioids crisis, he called for the death penalty for drug dealers.
Though there are 63 inmates on federal death row, the federal government has not conducted an execution since 2003.
Meanwhile, Texas, by far the nation’s busiest death-penalty state, has executed 267 inmates since the start of 2003. While far below its modern-era high of 40 executions in 2000, Texas has seen a rise in judicial killings – from seven per year in 2016 and 2017 to 11 so far this year, with Garcia and Alvin Braziel Jr scheduled to die this month.
That is more than half of the current national total: single executions have also been carried out in Florida, Ohio, South Dakota and Nebraska, with two each in Tennessee, Georgia and Alabama.
Texas’s figure is likely a result of fewer successful appeals this year than last, said Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty. “The actual number of execution dates that have been scheduled has not increased over the last couple of years. What has changed though is the number of stays of execution granted by the Texas Court of Criminal Appeals,” she said.
Houlé doubts that presidential rhetoric will spark a capital punishment renaissance at state level. “I actually think we see quite the opposite. The decisions to pursue the death penalty and to use it are made at the county level by elected district attorneys in Texas and like the rest of the country we’ve seen the election of reform-oriented prosecutors in Texas,” she said. “I think that we will continue to see a decline in the number of death sentences imposed.”
Garcia took part in one of the biggest prison breaks in Texas history. Seven men serving long sentences for violent offences escaped from a maximum-security unit near San Antonio in December 2000. They robbed a sporting goods store near Dallas on Christmas Eve, stealing 44 firearms. Hawkins, 29, responded to the incident and was killed in a gunfight.
Garcia was originally serving a 50-year sentence for stabbing a man to death, an act he claimed was self-defence. If his appeals fail he will be the fourth of the “Texas Seven” to be executed; two remain on death row.
Texas’ attorney general, Ken Paxton, filed a brief to the supreme court on Monday opposing a stay of execution, arguing that the court’s 1987 decision should remain valid and the officer was an “entirely foreseeable” victim.