A Just Decision from an Unjust State

Kenneth Foster was scheduled to be executed in Texas last Thursday even though he killed no one. He was to be the third person executed in Texas in just one week, but luckily Gov. Rick Perry granted clemency following the recommendation of the Board of Pardons and Paroles. The board’s members voted 6-1 in favor of clemency for Foster. No one could have predicted the decision, as past behavior of the governor did not give any indication that this could happen. The news both was and is both fortunate and shocking. This is no longer a sad note about Foster’s case but a proof of hope and confidence in our power to convince politicians in what we believe is right.

On August 15, 1996, Kenneth Foster—who was then 19—was driving a car carrying Mauriceo Brown and two men he recently had met: DeWayne Dillard and Julius Steen. During that evening, Brown committed two robberies and shot and killed 29-year-old Michael LaHood Jr. Kenneth Foster was in the car, 80 feet away, with the windows rolled up and the radio on. Mauriceo Brown was executed last year. Brown stated that Foster could not possibly have known that he was going to kill anyone.

According to the Texas Penal Code 7.02, in combination with Texas Code of Criminal Procedures Article 37.071(b)(2), Texas imposes the death penalty for complicity in a capital crime without requiring a finding that the person intended to kill or that he was a major participant in a crime in which he showed reckless disregard for human life. This is the application of “the law of parties.” Only four states have laws that enable prosecutors to hold those present at the scene of a crime legally responsible. Texas is the only state that applies this statute in capital cases and even a person innocent of murder can face the death penalty. Clearly these laws respond to a claim of revenge rather than justice.

After a fierce legal battle led by lawyer Keith Hampton and extra-legal actions organized by activists and Foster’s family, Gov. Perry commuted Kenneth Foster’s sentence. “After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” Gov. Perry said. “I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine.” Why is his decision so unbelievable? Because the Board of Pardons and Paroles rarely recommends clemency—it has happened just three times since 1982—and Gov. Perry has overseen more executions than any governor in the history of the state of Texas.

It was public pressure that caused the Texas’ authorities to change their ruling in favor of Foster. More than 5,000 people faxed or called the Board of Pardons and Paroles and the Governor’s office and personalities such as Susan Sarandon, former President Jimmy Carter, 13 Texan legislators and senators from New York, Archbishop Desmond Tutu, as well as groups including the European Commission and the Catholic Church, among others, supported Kenneth Foster’s cause. There is no doubt that this victory was possible thanks to local organizations and individual efforts.

But while Foster’s case is a fortunate, many others have not been so. You will find the story of Juan Melendez, who spent 17 years on Florida’s death row for a crime he did not commit, the arbitrariness in the cases of James Elledge, Gary Ridgway, Napoleon Beazley, and Christopher Simmons, the inhumane execution of Ángel Nieves Díaz who died after 34 minutes, the bloody execution of Allen Lee Davis, of innocent men who were executed, like Carlos DeLuna. You can also find information about the inefficiency of the death penalty, its unfair application, and the alarming relationship between race of the defendants and the final decision of some juries, and lists of more than 100 death row prisoners now exonerated that have not received compensation.

The Coalition Against the Death Penalty, for which I volunteer, is a motivated group that wants to create awareness about the death penalty as a cruel and barbaric punishment. Nobody, not even in the name of public safety, has the right to take our lives and we should act when things go wrong and murder is applied in the name of justice. Let us know if you want to be part of the change.