Innocent Man Sentenced to Death Under Cruel Texas Law
Kenneth Foster's time is running out.
Kenneth Foster's case is a good example. He's not just a black man accused of killing a white man; he was convicted for killing the son of an attorney highly esteemed by the legal community. As with so many other cases involving families of influence, the media was all over it, and the LaHood family's wish for an execution quickly became public knowledge. (LaHood's mother reaffirmed her support of Mauriceo Brown's execution last year.) In other particularly high-profile cases, the law of parties has come in similarly handy for the prosecution. In the trial of Patrick Murphy Jr. -- one of the notorious "Texas Seven," who in 2000 escaped from prison, killed a police officer on Christmas Eve, and were summarily sentenced to die -- prosecutors seeking death sentences across the board used the law of parties to circumvent the fact that Murphy was not at the scene of the crime. Prospective jurors were asked not just how they felt about capital punishment, but also about the law of parties specifically. (It worked. Murphy is now sitting on death row.)
The many excesses of Texas capital law offer a portrait of a brutal and broken system -- one that has long been protested by anti-death penalty activists. More recently, prisoners themselves have begun to organize from the inside. Kenneth Foster is among them. In 2005 he helped found D.R.I.V.E, a group of death row prisoners who protest the death penalty as well the abusive conditions of their incarceration. D.R.I.V.E, which stands for "Death Row Inner-Communalist Vanguard Engagement," is multi-racial, highly political, and, perhaps most important, thriving -- on one of the most repressive death rows in the country. Members encourage fellow prisoners to protest on execution days, and to protest their own executions (refusing to walk to the van that takes them to the executions chamber; refusing last meals). They also protest inhumane prison conditions. Last fall, a dozen death row prisoners at Polunsky went on a hunger strike to protest the inedible food and constantly overflowing toilets in their cells, among other abuses. Comparing themselves to the hunger strikers at Guantanamo Bay, they eventually caught the attention of the New York Times.
Some members of the group also invoke the legacy of Gary Graham -- a.k.a. Shaka Sankofa -- the Texas death row prisoner who was executed in 2000, despite overwhelming evidence that he could be innocent. Graham, who was put to death amidst widespread protests, maintained his innocence until the end, declaring in his last statement, "They are murdering me tonight." This era, which Dow considers the "heyday" of protest around executions, coincided with increased repression on Texas death row. Following an attempted prison break in the late 90s, the death row population was relocated. At their new home in the Polunsky Unit, prisoners are housed for 23 hours a day in cells that are 60 square feet (the American Correctional Association recommends a minimum of 80 feet). Work and recreation privileges are pretty much non-existent, and the few prisoners entitled to small luxuries can easily have them taken away. Such is the case of Stephen Moody, whose participation in last fall's hunger strike led to the confiscation of his radio. Texas death row prisoners are allowed no contact visits, and only a few phone calls a year.
Despite this, Kenneth Foster and D.R.I.V.E. have allies on the outside. In addition to his supporters and family in Texas, a New York-based political hip-hop group called the Welfare Poets is speaking out on behalf of Foster and other prisoners on Texas death row; grassroots groups like the Campaign to End the Death Penalty are working to protest Foster's execution, from Harlem to Austin. With Foster's legal recourses almost dried up, a letter campaign to members of the appeal board is underway. But it's a long shot. "Perry has never granted clemency in a capital case before, even when the Board recommended it," says Bryan McCann, a CEDP activist in Austin. In a state that will have executed 400 people by September, clemency has only been granted two times. "If Kenneth Foster has a good innocence claim, that would be great for him," Dow says, noting that innocence is what gets attention these days. But while Foster's supporters argue that Foster is innocent -- that nobody should be executed "for driving a car," in the slaughterhouse state of Texas, innocence can be harder to prove than guilt.