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How we dented the Lone Star State's armor

September 7, 2007 | Page 13

BRYAN McCANN, a member of the Campaign to End the Death Penalty in Texas, tells how the fight that saved Kenneth Foster was organized. This article appeared originally in the Daily Texan.

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ON AUGUST 24, I visited my pen pal Kenneth Foster for the first time on death row.

I first contacted him because of his work in the DRIVE (Death Row Inner-Communalist Vanguard Engagement) Movement, a group of men on Texas' death row who nonviolently protest against awful living conditions and against the death penalty in general.

As an anti-death penalty activist, I was immediately drawn to a man brave enough to organize in the worst of conditions, and struggle against injustice. Over time, Kenneth became one of my heroes. He is a genuine political mind with a nuanced analysis of the broken world around him--a fighter in the most authentic sense of the word.

I realized that my first visit might also be my last. With his scheduled execution less than a week away, I knew the odds of beating an execution in Texas were nearly impossible. Texas, after all, is the "belly of the beast." Four hundred executions since 1982 and a governor responsible for more state-sanctioned deaths than any other in history are not causes for optimism.

What you can do

For more information about Kenneth Foster's struggle and on the fight of Texas death row prisoners against executions and rotten conditions, see the Free Kenneth Foster and DRIVE Movement Web sites.

The Campaign to End the Death Penalty Web site has information on many cases, including Kenneth's--and on how you can get involved in the struggle against capital punishment.

Donations to the Save Kenneth Foster campaign are still needed. Send checks or money orders (to the account "To Save Kenneth Foster," no. 831766.1) to: Velocity Credit Union, P.O. Box 1089, Austin, TX 78767-9947.


However, this dread was totally absent from my visit with Kenneth. We talked about the future: What would be in store for the next week? What does the future of the anti-death penalty movement look like? If we do win, what's next?

I was not speaking with a man who was poised to die in six days; I was meeting an activist.

I left the Polunsky Unit that day feeling like I would see Kenneth again. Of course, I had no basis for this gut feeling and every reason to feel the opposite. That day, I left the busiest death row in the nation determined to fight until the end.

The end, of sorts, came Thursday. We won. Moreover, we made history. After a much-delayed recommendation for clemency from the Texas Board of Pardons and Paroles, Gov. Rick Perry commuted Kenneth's death sentence.

I spent the day walking around campus in a haze of ecstasy, laughing incoherently and grinning. The students in my public speaking class likely think their instructor is a madman. Fortunately, I don't care.

Perry has never granted clemency in this manner before, and Texas isn't exactly known for its generosity toward death row defendants. In spite of all of that, our movement, the Foster family and Kenneth have a victory.

There is no understating the historical significance of what we won this week. While the death penalty is on the defensive across the nation, Texas continued to be the trend's exception. We made a dent in the Lone Star State's armor with the Kenneth Foster case.

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HOW DID this happen? Keith Hampton, Kenneth's brilliant criminal attorney, will be the first to tell you this was not a legal victory. The judiciary failed Kenneth at nearly every turn, making a litany of constitutional mistakes that it was unable or unwilling to correct.

This was a political victory. On May 30, the Save Kenneth Foster Campaign held an inaugural meeting to start building a broad and visible movement to save his life. Following the lead of Kenneth's brave family, we set out to make Texas, the nation and the world aware that a man was about to be executed even though he had killed no one.

After an initial rally in downtown Austin, the state media began to take notice. Working closely with Kenneth's lawyers and advocacy groups around the country, we began to get a keen sense that we were making waves. One after another, Texas papers published editorials in support of Kenneth. High-profile figures like Archbishop Desmond Tutu and President Jimmy Carter lent their voices in support.

We came out with a very clear message: Everyone agrees that Kenneth Foster killed nobody, so why is he receiving the punishment reserved for the worst of the worst?

We're told that the death penalty is reserved for monsters who have no place in society. Yet here we had a man condemned to die who was in the wrong place at the wrong time.

Like the vast majority of those on death row, he was forced to depend on a court-appointed attorney. Like a disproportionate number of those sentenced to die, he is a Black man. His conviction was in no small part due to prosecutorial maneuvering and plea bargains.

The system is broken, and the Kenneth Foster case is that system laid bare. The death penalty is not about protecting people. It is a cynical political strategy that, in the words of legal scholar Austin Sarat, "makes us fearful and dependent on the illusion of state protection, that divides rather than unites, that promises simple solutions to complex problems."

This campaign was first and foremost about saving Kenneth Foster. However, he will be the first to tell you this struggle was and is larger than him.

During our time together last week, he told me about Rudy Medrana, another man on Texas' death row because of the Law of Parties. He told me this should be the next case we organize around.

Similarly, when I spoke with Lawrence Foster, Kenneth's grandfather, after hearing the good news, he told me this is one step toward abolishing the Law of Parties and the death penalty as a whole. For innocent people like Medrana, Rodney Reed and Luis Castro Perez, Kenneth's victory is also their victory.

Personally, I am elated that I get to visit my friend again. Politically, I see nothing but possibilities on the horizon. We proved we can win. I intend to continue doing so.

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