Thats the title of Houston Chronicle’s editorial regarding Gov. Rick Perry’s decision to commute Kenneth Foster’s death sentence. The interesting fact is that Houston Chronicle was the only major paper in Texas that did not take a stance on Kenneth Foster, before his scheduled execution date of Aug 30, 2007.
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.