Evolution in Texas -- On the Death Penalty

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The Nation

Evolution in Texas -- On the Death Penalty

by
John Nichols

There are many Americans who do not believe in evolution. And it is probably fair to say that a disproportionate number of them reside in Texas.

But it is from Texas that we gain confirmation of the absolute certainty that human evolution is a reality.

When George Bush was governor of Texas in the 1990s, he approved executions with impunity, sending to death those who might have been innocent and those who might have been guilty, those who had repented and those who had not, those who had adequate representation and those whose lawyers slept through the trials, those who had the mental capacity to understand their crimes, those whose mental state would have barred even a trial in more civilized jurisdictions.

In all, Bush signed more 150 execution orders as governor, a record for the state and nation. The world press recognized him as the "Texecutioner" or, in the slightly less volatile phrasing of London's Independent newspaper: "a death penalty enthusiast."

As president, Bush has continued his energetic advocacy for state-sponsored slaying. Only this month, it was reported that Bush and his soon-to-be-former Attorney General had developed a plan to speed up the executions of Americans lingering on the nation's death rows. The plan, which will be one of the last initiatives of Alberto Gonzales, is to make it easier for executions to be "fast-tracked" by states that want to avoid long appeals processes in the federal courts.

The Bush-Gonzales plan is to borrow a page from recent anti-terrorism legislation -- which strip away habeas corpus protections and other legal guarantees -- in order to allow states to rely on the Justice Department, rather than the federal courts, to decide whether death-row inmates received adequate representation at trial.

That would eliminate one of the primary avenues of appeal from convictions in states such as Texas, which have a history of providing inadequate representation for poor and minority defendants.

Bush and Gonzales, who have worked together since the president's days in Texas to make the killing machines of the states run more smoothly, also want to reduce the amount of time that death-row inmates have to file federal appeals and to pursue them.

So what's this about evolution? Clearly, Bush has not grown as a human being or as a public official with the power to decide who lives and dies.

But Bush is no longer the governor of Texas. Conservative Republican Rick Perry has the job. And on Wednesday, Perry commuted the sentence of Texas death row inmate Kenneth Foster's sentence to life. The decision came just hours before an innocent man was to be killed by the state -- a prospect that would not, in all likelihood, have concerned George Bush or Alberto Gonzales but that did concern Rick Perry.

Foster and his lawyers had long contended that, while he was in a car that was involved in a 1996 armed robbery spree that ended in the murder of a 25-year-old San Antonio man, he killed no one and had no knowledge or intention that a murder should occur. Indeed, Foster was at least eighty feet from where the killing took place.

All of this should have been sorted out at his trial. But Foster's trial was a travesty at which his attorney was not given a chance to cross-examine the defendants partners, who both received life sentences. Even if Foster's trial had been by a legitimate one, however, he might not have escaped the draconian implications of a Texas law that permits the casual execution of any and all participants in crime sprees that turn deadly.

The murderous mess that is Texas jurisprudence was dramatically illustrated by the Foster case. Thanks to the tremendous work of the Save Kenneth Foster Campaign, the world was made aware of the fact that Texas was preparing to perpetrate one of the most wrongful executions in the state's long history of wrongful executions. Even death-penalty proponents began to object.

Last Sunday, the conservative Dallas Morning News editorialized last:

Kenneth Foster was a robber. He was a drug user. He was a teenager making very bad decisions.

He is not an innocent man.

But Mr. Foster is not a killer.

Still, the State of Texas plans to put him to death Thursday.

Joining calls religious and political leaders around the world for a commutation of Foster's sentence, the Morning News ended its editorial by declaring, "Mr. Foster is a criminal. But he should not be put to death for a murder committed by someone else."

"Governor Perry once said that there was no hue and cry against the death penalty in Texas," said Lily Hughes of the national Campaign to End the Death Penalty. "Well, here was your hue and cry."

On the eve of the scheduled execution, Perry announced that, "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. 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."

That is not a message that would have been issued by Governor George Bush -- particularly the part proposing legislative intervention to correct an injustice.

This small measure of evolution, occurring in the unlikely state of Texas, has saved the life of a man who should never have been charged with a capital crime.

John Nichols' new book is The Genius of Impeachment: The Founders' Cure for Royalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use of the 'heroic medicine' that is impeachment with a call for Democratic leaders to 'reclaim and reuse the most vital tool handed to us by the founders for the defense of our most basic liberties.'"

Copyright © 2007 The Nation

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