supreme court reserves death penalty for murder

The Supreme Court ruled today that the death penalty is not allowed for child rape cases, meaning that the only crime left that is subject to capital punishment is murder.

As we predicted over two years ago, Anthony Kennedy has become the new swing vote on the court and he decided this 5-4 case.

Is the death penalty on the way out?

Well, I think it's a tough call because support for the death penalty nationwide in the past 10 years has actually been going down. But child rape is such a horrendous crime and all of us have such a natural revulsion towards it that you're never going to get a lot of support for any sort of reduction in sentence.

But I think, given the fact that this is a Supreme Court that said no death penalty for murderers under 18, no death penalty for the mentally retarded, this decision is consistent with a certain restriction on the death penalty, which is reflected in the court but also in a kind of national change that's going on.

Parole Board Votes 6-1 to Spare Kenneth Foster

By a vote of 6-1, the Texas Board of Pardons and Paroles has recommended clemency for Kenneth Foster. Whether they were troubled by the implications in this case or simply yielded to overwhelming pressure, today justice was done.

This is only the third time in its history that the board has recommended commutation on a death row appeal. The final decision is up to Gov. Rick Perry, and although his concurrence seems likely, it's not guaranteed.

In fact, the Board of Paroles has only recommended that a sentence be commuted twice in its history [prior to the Kenneth Foster decision.] In 1998, a recommendation was approved by then-Gov. George W. Bush in the high-profile case of Henry Lee Lucas. And, in 2004, they recommended the execution of paranoid schizophrenic Kelsey Patterson be commuted to life in prison, but Perry refused to grant the commutation.

Take a moment to thank the handful of Democratic legislators who signed letters to Governor Rick Perry urging a halt to the execution of Kenneth Foster, including three from North Texas.

Alma Allen (Houston)
Lon Burnam (Fort Worth)
Harold Dutton (Houston)
Jessica Farrar (Houston)
Helen Giddings (Dallas)
Terri Hodge (Dallas)
Donna Howard (Austin)
Ruth Jones McClendon (San Antonio)
Elliot Naishtat (Austin)
Dora Olivo (Rosenberg)
Eddie Rodriguez (Austin)
Sylvester Turner (Houston)
Mike Villareal (San Antonio)

Update: It's official. Bodicea at Texas Kaos reports that Gov. Perry has commuted Kenneth Foster's sentence to life in prison.

"After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster's sentence from the death penalty to life imprisonment," Gov. Perry said. "I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine."

It's time to revisit the "law of parties." And while we're at it, it might be a good time to take a good hard look at the makeup of the Texas Court of Criminal Appeals.

Texas Board of Pardons and Paroles to Rule Today on Kenneth Foster

The execution of Kenneth Foster is scheduled tomorrow, August 30 at 6:00 p.m. Foster was sentenced to death under the Texas "Law of Parties" provision. If you aren't familiar with the case of Kenneth Foster, you can catch up here.

After a day's delay, the Texas Board of Pardons and Paroles is scheduled to issue its ruling on a possible commutation of sentence for Kenneth Foster at 1:00 p.m. today. Governor Perry can either accept or reject the board's advice. Supporters of Kenneth Foster plan a rally this afternoon, after the board's decision.

The Campaign to Save Kenneth Foster will hold a rally and press conference to respond to the board's decision at 5:00 PM at the Texas Governor's Mansion (Lavaca at 11th).

Capitol Annex points out that as a Methodist, the decision to commute Foster's sentence should be easy one for Perry.

The call for mercy for Foster has literally reached around the world, and in the process, cast a harsh light on the Texas legal system. Jimmy Carter and Bishop Desmond Tutu are the latest in a distinguished line of concerned citizens, organizations and newspapers to call for a halt to the execution.

Update: According to the Texas Moratorium Network, there has been another delay in the decision by the Texas Board of Pardons and Paroles.

The Texas Board of Pardons and Paroles did NOT make a decision today on the case of Kenneth Foster, Jr. There was a crowd of about 75 people who had gathered at the governor's mansion in Austin waiting on the decision, but it never came. Now, we expect a decision tomorrow. We do not know what the reason is for the delay, but it is not really the best way to conduct a decision about an execution when the governor will have much less than 24 hours to consider whatever the board recommends. In fact, the governor should go ahead and issue a 30-day stay because of the BPP's failure to give him 24 hours to make a decision.

There is still time to contact the governor's office and urge him to stop Foster's execution. Contact info is here.

Rally for Kenneth Foster on August 21

I wanted to highlight a comment that someone left on a previous post on the plight of death row inmate Kenneth Foster.

If you are moved by the case of Kenneth Foster, and if you can get to Austin, we encourage all justice-minded people to come to a rally in support of Kenneth. The rally is on Tuesday, August 21, starting at 5pm. We will gather in front of the Capitol at 11th St. and Congress Ave. and march to the Governor's mansion to make our voices heard. For more information, visit [Save Kenneth Foster] or call 512.584.1578.

In the meantime, Sean-Paul Kelley, whose plea for mercy so moved us in the first place, notes that the human tragedy of this story has been lost in the scramble of media to win the ratings war.

And while we sympathize with Kelley's anguish, we're hopeful that the wider exposure will accomplish what the appeals process so far has failed to do - commute Foster's sentence. The odds at this point don't look good.

[Foster's attorney, Keith Hampton] said he has exhausted virtually all legal recourse, including an appeal to the U.S. Supreme Court, and that his last best hope relies on a recommendation of commutation from the Texas Board of Pardons and Paroles to [Gov. Rick] Perry.

Is he hopeful? Given Texas' track record with executions, "No, I am not," Hampton said. "The odds are extremely low."

In fact, the Board of Paroles has only recommended that a sentence be commuted twice in its history. In 1998, a recommendation was approved by then-Gov. George W. Bush in the high-profile case of Henry Lee Lucas. And, in 2004, they recommended the execution of paranoid schizophrenic Kelsey Patterson be commuted to life in prison, but Perry refused to grant the commutation.

Katherine Cesinger, a spokeswoman for Perry, said the governor considers each execution on a case-by-case basis. She said Texans overwhelmingly support the death penalty, and that Perry, in his suppot [sic] for it, is "carrying out the will of the people."

Jackie Deynolles, the acting chair of the 7-person pardons and parole committee that will review Foster's case, would not comment, other than to say that the board has received Hampton's petition and will issue a decision on Aug. 28.

Perry never made a move in his life that wasn't political. The fact that in Foster's case the punishment clearly does not fit the crime probably isn't keeping the governor up at night. The only way to convince him and the board to commute Foster's sentence is to convince them that an execution in this case is clearly not the "will of the people." (See rally, above.)

Foster is scheduled to be executed on Aug. 30th.

Will There Be Mercy for Kenneth Foster?

If you are following the Kenneth Foster case, Bob Ray Sanders has two op-eds on the subject this week. (See here and here.) If you haven't been following it, the Booman Tribune has a fairly succinct summary.

Kevin Foster, you see, was convicted under the "law of the parties" rule in Texas (in other states commonly referred to as the Felony Murder Rule) which makes a defendant liable for murder, even if the victim was killed by another person, and even if the defendant did not intend for the murder to occur, if anyone dies as the result of the commission of a felony. Foster was alleged to have been party to a robbery by Mauriceo Brown, the man who murdered Sean's friend, Michael LaHood, in the driveway of Mr. LaHood's home. Foster claimed no knowledge of the intended robbery, and never left the car in which he drove Mr. Brown and two other men. One of the other passengers in the car, Julius Steen, testified against Mr. Brown and Kenneth Foster in exchange for a lesser sentence. Brown and Steen had committed two other armed robberies earlier in the evening during the time Foster was with them. It was Mr. Steen's testimony which tied Kenneth Foster to the alleged robbery and subsequent murder of Michael LaHood by Mr. Brown. In essence, Kenneth Foster was sentenced to death for not taking a plea bargain before Mr. Steen did.

Sean-Paul Kelley, blogger for The Agonist, makes a very earnest appeal to spare Foster's life. What's remarkable about this diary is that he makes this plea for mercy even though the deceased, Michael LaHood, was Kelley's best friend.

I still remember eating chicken fried steak with him and D-Day--the third and most successful leg of our triumviral friendship--at Maggies at 3:00am after clubbing, back when the three of us attended the local junior college, were obsessed with the opposite sex but too stupid to realize they were just as obsessed with us as we were with them. God how I'd give anything to have him back. Thinking of him brings a tear to my eyes even now. What makes it worse is that I'd returned from living out of the country a few months before he was killed. A new career kept me busy. We kept postponing getting together. My last words to Mike--two weeks before he was murdered--were a cliché for all clichés: "we'll do it next weekend, buddy, we've got all the time in the world." I couldn't hear the clock ticking. I wish I'd listened closer.

And for that I hated Mauriceo and his gang even more, and for a long time. But the execution of a young man who didn't even kill Mike? That's not justice. It's senseless vengeance, a barbarism cloaked in the black robes of justice.

The Texas Moratorium Network has published Foster's letter to Governor Rick Perry. If one takes it on face value, it is a fairly affecting document.

I’ve discovered (and hopefully others will, too,) that the pain, sorrow and compensation is not taken care of through simply saying I’m sorry or through hundreds of executions, rather giving love everyday, helping someone, speaking truth to power - showing that one man with courage can be a majority.

If you agree with that last statement, Sanders' column ends with the following suggestion:

Contact the governor's office or the Texas Board of Pardons and
Paroles to object to the execution of Kenneth Foster Jr.

Gov. Rick Perry
Mail: State Capitol, P.O. Box 12428,
Austin, TX 78711-2428
Telephone: 512-463-2000
Fax: 512-463-1849
E-mail:

Use the form at www.governor.state.tx.us/contact

Texas Board of Pardons and Paroles
Mail: P.O. Box 13401, Capitol Station,
Austin, TX 78711

Kenneth Foster is scheduled for execution on August 30th.

Hang 'Em High

Johnny Paul Penry is the longest serving inmate on death row. Fifty-year-old Penry has spent more that half his years on death row for the rape and murder of 22-year-old Pamela Moseley Carpenter. Penry confessed and was given the death penalty, even though his lawyers maintain he is mentally retarded.

In 2000, Penry came within three hours of execution before justices halted it. This week, the U.S. Supreme Court handed down a decision on Penry's case, declining to reinstate the death sentence.

An editorial from 2000 gave compelling reasons why the death penalty should never apply to those under such circumstances:

The mentally retarded can never meet the criteria of extraordinary blameworthiness. People with retardation are incapable of calculated, mature evil. A retarded person is simply not the same as other adults. They are childlike in many of their limitations: their ability to reason and develop skills needed to navigate in the world are permanently stunted.

They have grave difficulties with language, communication, learning, logic, foresight, strategic thinking, planning and understanding consequences. They have problems with attention, memory and comprehension. They are limited in their ability to learn from experience, to control their impulses, to think in long-range terms or to understand causality. Children outgrow most of these limitations. Those who are retarded cannot.

Penry was physically abused as a child, has organic brain damage and is mentally retarded. Twenty-two years old in 1979 at the time he raped and murdered Pamela Mosely Carpenter in Livingston, Texas, he had then -- and has now-- the mental capacity of a 7-year-old.

Mental retardation is classified as mild, moderate or severe. Penry's IQ is considered to be between 50-60, which would rate him as moderate. How might this disability affect Penry's ability to understand his crime and assist in this defense?

Morris Mason, whose I.Q. was 62-66, was executed in 1985 in Virginia after being convicted of rape and murder. Before his execution, Mason asked one of his legal advisors for advice on what to wear to his funeral.

Penry's trial has been at the heart of the debate on capital punishment. In 1989, Justice Sandra Day O'Connor refused to grant a stay for Penry, citing that a consensus had not yet formed as to whether executing the mentally retarded constituted cruel and unusual punishment. So much for the theory of activitist judges. Instead, the American Bar Association took up the cause.

In 1989, the American Bar Association established a policy opposing the execution of those with mental retardation. The ABA held that execution of such individuals is unacceptable in a civilized society, irrespective of their guilt or innocence. In 1997, the continued imposition of the death penalty on the mentally retarded and juveniles contributed to the ABA's call for a nationwide moratorium on the death penalty.

In 2002, the U.S. Supreme Court finally ruled to forbid the execution of persons classified as mentally retarded. That case should have resolved this issue, but this is Texas, after all.

William Lee Hon, a Polk County assistant prosecutor who has been handling the case for more than two decades, said: “There have been so many disappointments in regard to this case, you kind of become conditioned to adversity. So you take these blows as they come, and you do the best you can.”

The parole eligibility is huge, and he might very well be parole eligible,” Hon said. “Is there any guarantee to keep him in prison if we choose to seek a life sentence? I don’t know. That’s one of the big questions to resolve in the process.”.....

Why don’t they just lock me up and throw away the key?” Penry told The Associated Press in 2001. “That’s all I want.”

The Polk County prosecutor is still weighing the option of another sentencing trial. At least five previous juries have found Penry legally competent to stand trial or have rejected defenses based on mental retardation.

Twenty-five years on death row, a family history of abuse, significant mental impairment, and an unfavorable Supreme Court ruling, but Polk County believes that justice can only be served by executing a man who, according to his lawyers, still believes in Santa Claus.