Point Austin: One Small Step
Kenneth Foster is one life saved on the long road to justice
By Michael King, Fri., Sept. 7, 2007
That's a sentence I never anticipated writing, nor I suspect most Chronicle readers anticipated reading. But Perry's decision last week, to accept the 6-1 recommendation of the BPP and commute the death sentence of Kenneth Foster to life imprisonment, is a historic step toward greater justice and mercy. Perry's decision was essentially unprecedented – the only previous times he has commuted executions were when he was effectively ordered to do so by court rulings: for example, that minors or mentally retarded inmates could not constitutionally be executed.
The clemency decision seemed even more unexpected in light of Perry's recent response to an earlier appeal for an execution moratorium by the European Union. In the condescending voice of his spokesman, Robert Black, Perry had told the Europeans to go suck a lemon: "While we respect our friends in Europe, welcome their investment in our state, and appreciate their interest in our laws, Texans are doing just fine governing Texas." In other words: "Send us your money, and shut up."
So despite the worldwide outcry against the Foster execution – reportedly the governor's office received 11,000 letters opposing it, 11 in favor – I fully expected Foster's story to end in the same way as every one I'd followed before it. I've been writing about capital punishment in Texas for a decade and had long since concluded that the "clemency" system (presided over by the BPP) was thoroughly broken – indeed, that it doesn't really exist. The board is officially required to consider any extra-judicial, mitigating factors in a capital punishment case. Not only had their almost unblemished record of rejections belied that responsibility, but I had watched a previous group of board members troop into federal court and testify, "We review the files to confirm the condemned has been duly convicted and that he had full access to courts" – a mantra that explicitly violated their mandate but echoed the position of the man who appointed them, then-Gov. George W. Bush. Actual clemency was not just an afterthought – it was no consideration at all.
Kafkaesque
So whatever the reason for this brief break in the bloody chain, I applaud it. In his commutation statement, Perry mentioned "the Texas law that allows capital murder defendants to be tried simultaneously" (Foster had been tried alongside the actual murderer, since executed), although that issue had not been prominent in Foster's appeals; the main question had been the state's application of the "law of parties" in this case – that Foster, who was nearby and complicit when Michael LaHood was killed, "should have anticipated" that the murder might occur and, therefore, must also die. Neither the facts nor the law supported that conclusion, and as Foster's pro bono attorney, Austinite Keith Hampton, told me last week: "Kenneth didn't kill anybody, and we've already executed the guy who did. What interest did we have in executing anyone else?" Elsewhere he'd noted that even Old Testament law requires only "one life for a life."
Hampton, among the handful of Austin attorneys who volunteer for the thankless task of defending death row inmates, was still giddy last week as he tried to account for the difference in this case over all the ones he's followed. "Nobody believes it," he told me. "But as we got close, I really did believe that I had at least five votes on the board." And in talking to the governor's staff, he continued, "I got a sense that the voices from overseas might have actually mattered – there were 3,000 signatures on a petition from Germany alone." Former President Jimmy Carter and South African cleric Desmond Tutu spoke out for Foster, and as part of the Italian anti-death-penalty campaign, the Roman Colosseum was lit on his behalf.
But of all those voices, always a double-edged sword in these public campaigns, Hampton's is the voice that mattered most. His letter to BPP Presiding Officer Rissie Owens squarely put the responsibility for fixing the legal errors in Foster's case on the extra-judicial shoulders of the board. "Kenneth Foster remains on death row because the courts are powerless to commute a sentence they know to be unconstitutional," he wrote. "The procedural technicalities of death penalty review have left Mr. Foster the victim of the most Kafkaesque treatment ever inflicted by state government."
"I urge you to cut through the overgrown technicalities of death penalty review and recognize that our Constitution will be bloodied with an unconstitutional execution if you fail to act," Hampton continued. "The illegality of his execution has already been appreciated, but only you can enforce the law the judiciary ... did not. Besides the many other reasons to recommend commutation (such as his demonstrable innocence), it would be tragic and shameful for a man to be executed because the executive branch was indifferent to the judicial branch's impotence to correct its known mistakes."
Many More
Somehow, Hampton cut through the ingrained resistance of the board and then the governor. "You have to remember, what they do all day for a living is turn people down for parole," he told me. "I got to know what their thinking is, their institutional thinking. I made unusual appeals and unusual arguments, but my basic pitch for clemency was that the judicial branch had screwed up and that you [the executive branch] are the only ones that can correct the mistake." All this, in some combination, prevailed – Kenneth Foster is alive today because Hampton and all his unnamed local and worldwide allies refused to allow themselves to believe that this Texas capital punishment story would end just like all the others.
It's one small step. Maybe it will be a turning point – death sentences slowly have been diminishing nationwide in recent years – but, as Texans, we've executed 402 people (at this writing) since the nationwide resumption of capital punishment in 1982, and several more Huntsville executions are scheduled for this month. Foster has noted that "there are several other people condemned under the 'law of parties' like me" and has asked advocates to continue working.
So may we all. It's only one small step. But for today, God bless Gov. Perry, and God bless Keith Hampton.
Send comments, questions, and news tips to mking@austinchronicle.com.
Keith Hampton on Kenneth Foster
Posted here is Atty. Keith Hampton's letter to Rissie Owen, presiding officer of the Texas Board of Pardons and Paroles, as well as his full application for commutation on behalf of Kenneth Foster.
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