Blogger Beldar objects to the Nation piece on the pending execution of Kenneth Foster and, apparently, to me uncritically linking to it.

Well first, my linking to the piece doesn’t mean I approve of everything in it, though I obviously don’t agree with everything in Beldar’s post, either. I don’t think that Foster is a wholly innocent man. I also understand that he was convicted of felony murder (or at least Texas’ version of it), and that the law may very well have been applied appropriately. I just still happen to think it’s an injustice.

Over the last few months, I have expressed skepticism about the felony murder doctrine, and the increasing willingness of prosecutors to chase after it (the most recent example was the discussion in Arizona about charging the guy who led police on a car chase with murdering the news crews of two helicopters that crashed while covering it). I linked to the Foster article because it is another example of an overly broad application of felony murder, in this case to win the death penalty for a guy who clearly had no intent to kill anyone, and didn’t actually kill anyone himself.

If you only speak legalease, I suppose I was wrong to say that the state of Texas “admits” that Foster “committed no murder,” given the specific legal definition of the word “murder.” Though the state of Texas concedes that Foster didn’t actually pull the trigger, and had no actual intent to kill anyone, the state does believe that he did still in fact commit a murder. I’m not a lawyer, and wasn’t writing as one. But perhaps a better phrasing would have been, “…that the state of Texas admits didn’t actually kill anyone.”

Foster’s no saint. He’s guilty of being an accomplice (driving the car) in a series of low-rent armed muggings. He should do time for that. And perhaps he should do time for continuing to drive away once he had reason to believe one of his accomplices in the robberies went off the deep end and killed a man (though if someone in my car had a gun, and had just killed someone, I’m not sure I’d be ready to argue with him). But yeah, I do believe it’s an injustice to execute someone who had no intent to kill, and whose actions–even in the course of committing a felony–didn’t directly lead to anyone’s death.

Beldar also seems overly sensitive to the fact that this occurred in Texas, and that the Nation article mentions that Foster is black.

Well…

(1) Texas’ criminal justice system has a particularly troubling record when it comes to race (here are just two examples).

(2) The death penalty itself is racist. Whites make up 50 percent of all murder victims. But they make up 80 percent of the victims in death penalty cases. One study found that when accused of similar murders under similar circumstances, blacks are nearly 40 percent more likely than whites to get the death penalty. So the death penalty is more likely when the victim is white than when the victims is black. And the death penalty is more likely when the perpetrator is black than when the perpetrator is white. And here you have a black man about to be executed for the murder of a white man. And under a broadly applied theory of felony murder that many find disturbing. Foster clearly isn’t the “worst of the worst” most people have in mind when they think to whom we should give the death penalty.

Did race motivate prosecutors to seek the death penalty in this case? I don’t know. There’s no way of knowing. But given the above statistics, I don’t think it’s out of line to note the race of Mr. Foster and the murder victim.

By the way, I have no racial ax to grind. I once supported the death penalty. I oppose affirmative action, and am generally skeptical when people play the race card. But a few years of covering criminal justice issues have convinced me that racism is still rampant in much of this country’s criminal justice system. It plays a huge role in who gets arrested, charged, convicted, and what the resulting sentences look like.

Sorry if some find that offensive. I only know what I’ve seen, and what I’ve read, and where I’ve been.

(3) Texas is the most enthusiastic death penalty state in the country. It’s execution-happy reputation is well-deserved.

So Texas’ criminal justice system has race problems (not to mention convicting-the-innocent problems). The death penalty has race problems. And Texas loves the death penalty. I don’t see anything inappropriate about noting these things as context when discussing a death penalty case in Texas.

But getting back to the thrust of Beldar’s post, there seems to be a disconnect between lawyers and non-lawyers when these cases come up. I, and I think Steve Verdon and others who are concerned about the case, believe that it would be unjust for Texas to execute Foster.

Beldar responds with an in-depth analysis explaining how Texas’ felony murder law was applied correctly, Foster was appropriately found guilty, and how the state and federal appeals courts were right to uphold his conviction and sentence.

I think the point is that many people believe the death penalty is reserved for the worst and most egregious offenders, and are thus troubled that a man can be executed for a murder that he not only didn’t intend to happen, but that he didn’t actually directly commit. Whether or not the law was applied properly is beside the point. If the law allows for a guy in Foster’s position to be executed, then there’s something wrong with the law.

This entry was posted on Tuesday, August 14th, 2007 at 8:50 am by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.