It's not an understatement to call the commutation of Kenneth Foster's death sentence historic.
Only time will tell whether the Board of Pardons and Paroles and Governor Perry, whose current term ends in January 2011, will begin to examine the broad range of factors historically considered in executive clemency. As noted in this post, governors of Texas -- and many other states -- have limited clemency consideration to a threshold presentation of demonstrable evidence of actual innocence in recent years. That is a far cry from clemency's historic role and the reliance that federal courts have placed on executive clemency as a "fail safe" balancing capital punishment.
Bob Ray Sanders -- who perhaps more than any other journalist -- focused early, critical attention on the disproportionality of Kenneth Foster's death sentence has, "'There will be no execution in Texas tonight,'" in his column today in the Fort Worth Star-Telegram.
In several columns, I had tried to make him more than a number, and yet the numbers continued to run through my head: the 24th to be executed in Texas this year; No. 403 executed in Texas since capital punishment was reinstated in this country in 1974.
Although I had urged others to stay strong and "keep the faith," I was losing faith with the passage of every mile marker.
Then around 11:30 a.m., my phone rang, and an excited Adam Axel announced that the Texas Board of Pardons and Paroles had just voted 6-1 to recommend that Foster's death sentence be commuted to life in prison.
It's what we had hoped for, prayed for, fought for, but we knew that it was still up to the governor to grant clemency -- something he was not keen on doing.
Axel, whom I had never met face to face, is a recent college graduate from New Jersey who is preparing to go to law school. He pestered me into looking at Foster's case this summer. When I did, it was clear that a man who had not planned, participated in or anticipated the murder for which he was convicted should not be executed for it.
And, he's referring to Austin attorney Keith Hampton in this excerpt:
The tears began to come as I thought about the words of Martin Luther King Jr., quoting Scripture in that "I Have a Dream" speech, when he longed for the day that "Justice will roll down like waters and righteous like a mighty stream."
Justice was finally flowing in Texas -- at least for one man.
But in one of his last messages to his supporters, Foster reminded them that others have been convicted under the state's "law of parties," and he urged that even if he were to be executed, we should continue to work on their behalf.
Arriving in Huntsville, reuniting with people I'd never met but who felt like family, I felt a day of mourning turn into one of extreme joy. I was proud of my governor.
Hampton, an Austin attorney who represented Foster pro bono, can't be praised enough for his untiring dedication to this case.
"No word in the English language is capable of expressing the way I feel," said Foster's grandfather Lawrence Foster, as he hugged me outside the prison wall.
Part of the reason for the influence of Bob Ray's column is his experience and reputation as a Texas journalist; he's highly respected by his peers. In short, it's not just regular readers of the Star-Telegram who pay attention to his columns.
The Houston Chronicle has the editorial, "Timely judgment."
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.
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