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Victory in Texas

September 7, 2007 | Page 16

ALAN MAASS reports on the successful struggle to save Kenneth Foster.

IN AN inspiring victory for the anti-death penalty struggle, Kenneth Foster Jr. won clemency August 30, hours before he was scheduled to be executed in Texas' death chamber.

For more than 10 years, politicians, prosecutors and judges at every level failed Kenneth. They all agreed that he should be put to death, even though everyone acknowledges he never killed anyone.

The only reason Kenneth is alive today is because he and his supporters refused to stop fighting. They exposed the injustices surrounding his case and forced the political and media establishment to pay attention. As Kenneth's lawyer Keith Hampton put it, "Extra-legal means work."

Kenneth was nearly put to death because he was driving the car on an August night in 1996 during a string of robberies committed by Mauriceo Brown. At the end of the night, Brown got out of the car and shot Michael LaHood Jr.

Even prosecutors admit that Kenneth remained in the car and had nothing to do with the shooting. But using Texas' "Law of Parties," they argued that Kenneth either knew that Brown was planning to commit murder, or should have "anticipated" it, so he should suffer the same penalty.

What you can do

For more information about Kenneth Foster's struggle and on the fight of Texas death row prisoners against executions and rotten conditions, see the Free Kenneth Foster and DRIVE Movement Web sites.

The Campaign to End the Death Penalty Web site has information on many cases, including Kenneth's--and on how you can get involved in the struggle against capital punishment.

Donations to the Save Kenneth Foster campaign are still needed. Send checks or money orders (to the account "To Save Kenneth Foster," no. 831766.1) to: Velocity Credit Union, P.O. Box 1089, Austin, TX 78767-9947.


By trying him alongside Mauriceo Brown--and making a plea deal with the other occupants of the car in return for testimony--the state won its case against Kenneth and got a death sentence.

In 2005, a federal judge overturned Kenneth's death sentence on the grounds that he had neither "major participation" in the murder nor displayed a "reckless indifference to human life." But that decision was overruled in turn at a higher level, and in August, the Texas Court of Criminal Appeals dismissed Kenneth's final legal appeal without even bothering to write an opinion.

With the decision in the hands of Texas Gov. Rick Perry, Kenneth's chances looked grim. Perry recently surpassed his predecessor, George Bush, in the most executions carried out since capital punishment was reinstated in 1976. When the European Union recently called on Texas to consider ending the death penalty, Perry's spokesperson responded that the U.S. had "fought a war to throw off the yoke of a European monarch"--and that "Texans are doing just fine governing Texas."

Perry had commuted death sentences before, but only in cases where the U.S. Supreme Court or some other court action had effectively made the decision for him. He had turned down every application for clemency from a death row prisoner. In fact, in 2004, when the Texas Board of Pardons and Paroles voted by 5-to-1 to recommend clemency for Kelsey Patterson, who had been diagnosed with schizophrenia, Perry ignored the vote--and the execution went ahead.

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FORTUNATELY, KENNETH could rely on dozens of supporters, in Texas and around the country, to make his case for justice.

After his conviction, Kenneth became an activist on death row. The DRIVE (Death Row Inter-communalist Vanguard Engagement) Movement he co-founded with other prisoners used nonviolent protest to draw attention to awful conditions on death row and demand abolition of the death penalty.

When his execution date was announced last May, Kenneth's family came together with anti-death penalty activists to form the Save Kenneth Foster Campaign. Its members held weekly meetings to organize a movement around the case. Rallies and marches in Austin and San Antonio drew dozens and then several hundred people into the streets.

Sadly, activists found doors closed in their faces where they had expected support. Texas' well-known liberal Rep. Sheila Jackson-Lee complained that activists were leaving too many messages asking her to take a stand--and canceled a promised meeting with members of the campaign for Kenneth.

In New York City, when Kenneth's supporters asked Rep. Charles Rangel to bring the case to the attention of the Congressional Black Caucus, Rangel did nothing--beyond sending a "policy adviser" to meet with a delegation of activists and tell them that their appeal to Rangel had arrived too late for him to even read it.

But the word was spreading, especially in Texas, where--thanks to the mounting pressure applied by activists--Kenneth's case became a major news story. Mainstream newspapers, including some with conservative reputations, called for the execution to be halted.

"Governor Perry once said that there was no hue and cry against the death penalty in Texas," said Lily Hughes of the Campaign to End the Death Penalty. "Well, here was your hue and cry."

The biggest source of inspiration for the struggle was Kenneth himself, who urged on his supporters and said he was beginning a hunger strike in the final days before the execution.

"As the days wind down," Kenneth wrote in what he must have feared would be one of his last letters, "I still find myself continually inspired and able to keep a smile on my face, because I know that RIGHT is on OUR side, and though they may kill my body, they can't kill what we've done. All of you are amazing, and I don't have words right now to thank you all in the way that you need to be thanked."

In August, the Texas Court of Criminal Appeals turned down Kenneth's final legal appeal, and activists turned their attention to Perry and the Board of Pardons and Paroles. The board is appointed by the governor and considered by anti-death penalty activists to be little more than a rubber stamp, but Kenneth's supporters flooded Perry and the board members with telephone calls, faxes and e-mails.

The board was due to make a decision August 28, but delayed it for one day, and then another. Then, with seven hours to go before the scheduled execution, the announcement came: the board had voted 6-1 to recommend clemency.

All eyes turned to Perry. This time, the scrutiny and questioning was too widespread for him to ignore. He ordered a halt to the execution and commuted Kenneth's sentence to life in prison.

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KENNETH'S CLEMENCY was dismissed by some as a unique case--the result of the overly strict Law of Parties--that is unlikely to have an impact on other executions. But Kenneth Foster has much more in common with other death row prisoners than this suggests.

Kenneth was too poor to afford an attorney and had to rely on a court-appointed lawyer with a losing record in every capital case she defended. The state withheld evidence, and witnesses testified after making plea deals. Kenneth is African American and charged in the murder of a white victim--two facts which together make it many times more likely that prosecutors would seek the death penalty.

The Law of Parties accounts for only a minority of prisoners on Texas' death row--though the Dallas Morning News' estimate that 80 death row prisoners were convicted under the law, and that 20 have already been put to death, is probably far higher than most people realize.

But the basic fact of this case--that Kenneth came to the brink of the death chamber for being in the wrong place at the wrong time--is true about many more death row prisoners.

It's obviously true of the now more than 120 people in the last 30 years who have been exonerated and freed from death row--often, victims of prosecutors under pressure to win convictions, no matter what the facts.

But it's also true of so many who admit their guilt--people who made a terrible mistake, often while incapacitated or intoxicated, and are now supposed to pay for it with their lives. The stereotype promoted by prosecutors of death penalty defendants as cold-blooded monsters who glory in their crimes applies no more to them than to Kenneth Foster.

Revelations of the randomness of the death penalty system--its shocking number of innocent victims wrongly convicted, its pathetically low standards and questionable ethics--is raising new questions. From a high point in the 1990s, support for the death penalty is down to 65 percent, but doubts about the system are so strong that 58 percent of people want a national moratorium on all executions.

Kenneth Foster's case will lead to more questioning. How on earth, people will wonder, could a man who was never responsible for killing anyone have come within hours of being put to death?

The tide is turning against the death penalty in the U.S. But capital punishment won't be ended without more action--more people standing up to expose the injustices in cases like Kenneth's and demanding an end to the cruel system of state-sponsored murder.

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