Kenneth Foster may very well die today for a crime he didn’t commit. The 30-year-old prison poet was 19 and behind the wheel the night of August 14, 1996, driving three members of his gang around San Antonio on a crime spree that led to four armed robberies and the murder of Michael LaHood Jr., a 25-year-old law student. Mauricio Brown, who shot LaHood, was executed in July 2006, and the other two accomplices are serving life sentences. Foster is on death row, awaiting a lethal injection.
The decision in this case relies on Texas’s dubious “law of parties,” which holds that Foster was guilty of the murder Brown committed in part because he kept the car running and thus, the argument goes, was able to “anticipate” what Brown was about to do. The logic here is patently absurd: How does leaving the key in the ignition equate to foreknowledge of Brown’s crime? Would Foster have turned the car off for a mere mugging? More simply–and assuming Foster did, in fact, know that Brown intended to kill LaHood–why is driving the getaway car a crime punishable by death? Even more simply, why should any crime, no matter how heinous, merit the death penalty? Why are Americans clinging to such a flawed, atavistic notion of justice? If this case doesn’t make one question the basis for capital punishment, I don’t know what would.
Texas, however, can’t seem to get enough of it this week. Unless Governor Rick Perry issues a reprieve in a matter of hours, Foster will be the third inmate executed in the State of Texas in as many days; that will make him the twenty-fourth this year, and the 403rd since capital punishment was reinstated in Texas in 1982. Foster is preceded by DaRoyce Mosley, convicted for a murder he committed at 19 and executed on Tuesday, and John Joe Amador, who was killed Wednesday for allegedly murdering a cabdriver at the age of 18.
Texas law classifies 10- to 17-year-olds as juveniles; all three of these men were legally (but barely) adults at the time the crimes were committed. But it’s worth noting that Amador had served three years in California’s Youth Authority, following a conviction as an accomplice to his stepfather’s fatal stabbing. The CYA, a notorious failure when it comes to rehabilitating young offenders, locked him up for a couple of years and then saw fit to let him off on parole. I would also add that the Texas Court of Criminal Appeals and the US Supreme Court rejected a petition to stay Amador’s execution on the grounds that his trial lawyers failed to introduce evidence about his abusive childhood. And I think it’s worth mentioning that the woman who was sitting in the front seat of the cab that night admitted under oath that she had drunk perhaps fifteen beers and a wine cooler earlier in the evening. She was able to identify Amador as the killer only after repeated interviews and a hypnosis session.