Time is running out for George W. Bush. There are barely 17 months remaining in his presidency. Soon, but not soon enough, he will exit public office and return to private life in Texas, where he will await history’s final judgment. He will not be viewed kindly. Nonetheless, he will have escaped any real consequences for his harmful behavior. He will have gotten away with war crimes and mass murder.
Meanwhile, time is running out for a different Texan, a man by the name of Kenneth Foster who has less than 17 days remaining in his life. He sits in a 6 x 10 foot cell on death row, where he awaits execution. And he never murdered a soul.
Kenneth Foster’s time is running out.
On Tuesday, August 7, in a six-to-three decision, the Texas Court of Criminal Appeals denied his final writ of habeas corpus, giving the legal green light for his execution. Foster, who is scheduled to die by lethal injection on August 30, is now at the mercy of the merciless Board of Pardons and Paroles. The odds are bad. Five out of seven board members must recommend clemency before Governor Rick Perry will consider it — and in a state that has executed nearly 400 people in thirty years, clemency has only been granted twice. But Foster’s supporters, who are spearheading a letter-writing campaign to the board and governor, are relying on one particularly salient detail to move their minds, if not their hearts: Foster didn’t kill anyone.
Foster was convicted for the 1996 murder of Michael LaHood Jr., who was shot following a string of robberies, by a man named Mauriceo Brown. Brown admitted to the shooting and was executed by lethal injection last year. Now Foster faces the same fate. So, if Brown was the shooter, what did the 19-year-old Foster do to get a death sentence? He sat in his car, 80 feet away, unaware that a murder was taking place.
Foster was convicted under Texas’s “law of parties,” a twist on a felony murder statute that enables a jury to convict a defendant who was not the primary actor in a crime. This can mean sentencing someone to death even if he or she had no proven role in a murder. Texas’s law states that “if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it.” Defendants, the Texas courts say, can be held responsible for “failing to anticipate” that the “conspiracy” — in Foster’s case, the robberies, for which he was the getaway driver — would lead to a murder. Foster’s sentence, death row prisoner Mumia Abu-Jamal recently commented, “criminalizes presence, not actions.” [full text]