The Houston Chronicle did not call for halting the execution of Kenneth Foster before his sentence was commuted last week, but they have an editorial today saying stopping it was the right thing to do. This is a case of recognizing political courage when you see it all around you, but not finding any within the members of your own editorial board. Unlike the Houston Chronicle, other papers did have the courage to do the right thing and ask the governor to commute the execution before it was scheduled, including the Dallas Morning News and the Fort Worth Star-Telegram. Maybe next time, the Chronicle will speak out sooner.

Editorial

Aug. 31, 2007, 9:14PM
Timely judgment
Gov. Perry was wise to acknowledge flaws in Kenneth Foster’s death sentence.

Copyright 2007 Houston Chronicle

From his cell on death row, Kenneth Foster didn’t pretend to be an innocent. In 1996, Foster drove the car in a nighttime crime spree, ferrying friends to two armed robberies before following a pair of cars into a neighborhood. After Foster’s companion got out and shot one of the drivers, the 19-year-old Foster whisked the murderer and his other passengers from the scene.

Repugnant though they are, Foster’s crimes did not include the murder of Michael LaHood, a 25-year-old law student. Through an unprecedented turn of events, Foster Thursday narrowly escaped dying for that murder. To the surprise of many, Gov. Rick Perry heeded the recommendation of the Board of Pardons and Paroles to commute Foster’s sentence to life.

The governor’s decision did not, however, arise from the “law of parties” — the unique Texas law that holds all participants in a capital crime equally culpable, if it can be proved they “should have anticipated” the fatal outcome. The advocates for reducing Foster’s sentence included 13 members of the Legislature, most of whom argued that Foster had no idea a shooting would take place. Foster and his co-defendants testified that while Foster knew of the previous crimes that night, he didn’t anticipate murder.

He certainly should have. His friend, after all, brandished a loaded gun. But guesswork about the calculations of an impulsive 19-year-old who was high on marijuana and drunk is too flimsy a basis for execution.

Perry, though, questioned something else: the fairness of a trial in which shooter and driver were convicted at the same time. When the Legislature reconvenes in 2009, lawmakers should act on the governor’s recommendation to reconsider the flawed Texas law that allows such dual trials.

Perry’s commutation came only hours before Foster was to die. That there was not one question, but two about the propriety of his sentence underscores qualms about the unflinching way Texas imposes the death penalty. Foster would have been the 403rd person to die since the death penalty was restored here.

The case is extraordinary, not just because Foster was saved at such a late hour, but because the governor agreed with the parole board that the sentence was unwarranted. Not required to follow its recommendations, Perry once before rejected the board’s 5-1 vote for clemency in the case of a schizophrenic inmate. That prisoner was executed in 2004.

Foster’s role in Michael LaHood’s death deeply harmed his loved ones and society. Putting Foster to death, however, would have been an unfit punishment for the part he played. The pro-death penalty Perry was wise to acknowledge that, in this case, life in prison was just.

At the same time, Foster’s close call — and the multiple questions about the fairness of the sentence — only deepens doubts about other Texas convictions that ended in lethal injection. It took a timely mix of evidence, representation and political leadership to forestall Kenneth Foster’s execution. Absent any one of these at the right moment, the miscarriage of justice would have been permanent.

There are certainly many lessons to learn from the Kenneth Foster victory. The victory was the result of the entire Texas anti-death penalty movement working together, including every anti-death penalty organization in Texas, as well as Kenneth’s lawyers and family members and some long-time supporters of Kenneth from other U.S. states and around the world.

One important lesson is that organizing works. In particular, affecting public opinion through grassroots organizing works. Pressuring elected officials works. Texas is not a lost cause, as some people outside Texas sometimes seem to think. Here in Texas, we have known for some time that we are making progress. But, we also know that the national anti-death penalty movement should be investing more time and money in Texas. Investing more financial and other resources into the Texas anti-death penalty effort would pay off in more of the type of successes that we saw with the Save Kenneth Foster Campaign.

The Texas anti-death penalty movement would like to ask for more help from national funders and organizations. Some people do understand that Texas is where a lot of effort should be expended. For instance, we are thrilled that the Journey of Hope is coming back to Texas this fall. But, we need more resources and more help. With increased attention to Texas, we will be able to win more often and we will be able to significantly reduce popular support in Texas for the death penalty and greatly reduce the number of executions that take place here.