Kenneth Foster Jr. was scheduled to be executed yesterday for a murder he did not commit or intend to commit. But in a remarkable turn of events, Texas Governor Rick Perry did something he rarely does: he commuted Foster’s death sentence. In fact, Foster’s is the only sentence he has commuted voluntarily. In a letter Foster wrote to Governor Perry in the days before his imminent death sentence, he stated that the governor is a history-maker and the he is a part of the governor’s history. He was right.
Governor Perry should be commended for stopping the execution. He recognized the punishment was too harsh given the circumstances. In a press release issued after the commutation order, Perry stated that he was concerned that Foster and the actual shooter were tried together. He also suggested that ending joint capital trials is something the state legislature should consider.
The governor is right. The state legislature should look at the circumstances which led to Foster being tried with the killer. The legislature should also examine the law which allowed Foster to face the death penalty in the first place. Foster was convicted under Texas’ law of parties. This law allowed Foster to be sentenced to death for a murder that he did not commit nor intend to commit.
Foster’s commutation was historic. Texas had already executed a man convicted under this unjust law this year. The Dallas Morning News reports that 80 people on Texas’ death row were convicted under the law of parties. Twenty non-killers have been executed in Texas since 1982. That’s 20 people killed for crimes that they did not commit or intend to commit.
While the Texas law is broad, there are other states with similar laws. Felony murder laws allow for criminal liability for a murder if it happens in the process of a felony. These laws make people who were not the “trigger person” responsible for murders they never intended to happen. And like Texas, other states allow defendants convicted in this way to be executed.
Legislatures throughout the country should heed to Governor Perry’s advice. They should examine the way capital defendants are tried. And while they’re at it, they should look at their felony murder statutes, abolish them for non-killers in death penalty cases and make them history.