Barring a miracle–and miracles are in short order on Texas’ death row–Kenneth Foster is likely to die Thursday. The battle around his case has been a heroic one. Kenneth’s horrifying story of being condemned to death on a misapplication of an already draconian legal monstrosity–Texas’ "Law of Parties," which enshrines guilt by association–as well as his own clear-eyed and articulate work telling his story and speaking out for others, have won him a host of supporters.
Foremost, of course, there is his family, including his heartbreakingly articulate daughter Nydesha–who has never touched her father, and now may never do so. There is the Coalition to Save Kenneth Foster, a group of activists who have rallied to his defense. There is also the New York hip-hop collective the Welfare Poets, and Kenneth’s wife, the Dutch hip-hop artist Jav’lin, who dedicated the moving song Walk With Me on the Poets’ Cruel and Unusual Punishment CD to her husband’s struggle to live. Mumia Abul-Jamal, from his own death row confinement, wrote in solidarity, while Amnesty International called the case "a new low for Texas"–and that is low indeed.
There are others. Sportswriter Dave Zirin’s Jocks 4 Justice, a coalition of socially conscious sports figures like Ruben "Hurricane" Carter, Etan Thomas and Dr. John Carlos, said that Kenneth should live. Archbishop Desmond Tutu of South Africa filed an amicus curae brief for Kenneth. And the European Union singled Kenneth’s case out as particularly egregious in condemning Texas’ 400th execution. (Governor Perry’s response was to state that the U.S. had fought a war to be free of European influence, and that "Texans are doing just fine governing Texas.")
The major papers in Texas have all come out against the execution. There is even a soul-searching statement from Sean-Paul Kelley, a boyhood friend of Michael LaHood, the murder victim in whose name Kenneth will be strapped to a gurney this Thursday: "the execution of a young man who didn’t even kill Mike? That’s not justice." Kelley writes. "It’s senseless vengeance, a barbarism cloaked in the black robes of justice."
With the picture of this broad, international roster of supporters before our eyes, a coalition of activists in New York decided to approach our own formally anti-death-penalty Democratic representative Charles Rangel, co-founder of the Congressional Black Caucus. Kenneth’s impeding execution is clearly a Civil Rights issue, as is the death penalty in general. It is difficult to imagine a wealthy white 19-year-old receiving the same treatment that Kenneth did. All five–yes, five–of the executions scheduled in Texas for this month are people of color (four are Black, one is Latino).
Two weeks ago, Rangel’s staff took a draft letter we wrote to Governor Perry on Kenneth’s behalf, which we hoped he would sign onto. They pumped us for information about the case; they wanted to know who was on board already. We told them that we wanted Rangel, as a politician with an abolitionist record, to take the lead in making Kenneth’s case heard in the halls of power. Then we waited. And as of last week, we were informed that Rangel would not see our letter for "several more days." Given that after Tuesday it did not really matter, since it is was on Tuesday that the Pardons Board was to make its decision whether or not to recommend the case to the Governor (it has been delayed to today, Wednesday), this was the same as shutting the door.
So Monday morning, we decided to pay a visit to Charles Rangel.
We brought members of Harlem’s Campaign to End the Death Penalty (CEDP) and supporters of Kenneth. There was Ray Ramirez from the Welfare Poets, and Ronnique Hawkins from the Anti-Lynching Movement, and Michael Letwin, the radical lawyer and former President of the Association of Legal Aid Attorneys/UAW. There was Jeffrey Deskovic, recently released on DNA evidence after 17 years in jail, and Lawrence Hayes, former Black Panther, New York death row inmate and Campaign founder. There was a man whose son has been a penpal of Kenneth’s for years. We were students and activists and independent journalists, former prisoners and family members–those that have the most at stake in fighting the death penalty and criminal injustice. And we were there to ask that our anti-death-penalty representative to take a stand while it still mattered.
They didn’t want to let us up at first, but at last Rangel’s policy advisor came down to meet our community delegation. He sat us around a cafeteria table, and explained to us that Rangel was a very busy man, that he hadn’t read the letter and that we hadn’t gotten it to him in time. He explained that whether we liked it or not, Kenneth had been convicted by a real law in Texas, and that Rangel had to be careful what he said about that. He seemed to have forgotten–the fight for racial justice in the US meant overturning "real" laws like slavery and Jim Crow. Unjust laws are made to be broken. Rangel, the man said, had a pile of papers on his desk. This representative of our elected official sat at a table with those who’d been railroaded by the criminal injustice system and had their lives destroyed by it and told them that Kenneth’s case was not urgent enough.
But, they’d "talk to the communications director at the Congressional Black Caucus." They’d "put it in front of Rangel."
Kenneth Foster’s execution date is Thursday at 6 pm.
Meanwhile, a few of us, waiting outside in Adam Clayton Powell Plaza for our press conference to begin, were confronted by security guards for carrying "Save Kenneth" signs. They told us we needed a permit. Not even for holding up the signs. Just for holding them in our hands. A guard in a beret told us we were inciting a disturbance–that is, he seemed to think that the sight that the words "Save Kenneth Foster" and a picture of Kenneth and Nydesha under someone’s arm might incite a disturbance.
Just another example of post-9/11 paranoia in New York, maybe. But it also shows how the law-and-order agenda has sapped away all our rights, has made acceptable affronts that would have seemed absurd a few years ago, with the death penalty being only the sharpest expression of this. Kenneth himself has written about how his case symbolizes this assault. And Kenneth, through his own activism behind bars, has helped build a movement to shine a light on the injustice–to expose the racism, the bloodlust and the social blindness that our criminal injustice system is built onnot least of all the out-of-control Texas death machine.
And it seems that some people would rather not have to be confronted with this.
There is a final thought. At the end of the day, Kenneth is being executed for not having predicted a murder that he had no way of predicting, for not having read Mauricio Brown’s mind when he exited the car Kenneth has been driving. For not having called out to stop a murder he did not know was going to be committed. He is being killed for not seeing the future, "sentenced to death for leaving his crystal ball at home," as Amnesty puts it.
Our representatives, unlike Kenneth, can see the future. They know exactly the hour and the date that the killing of Kenneth Foster will take place. The state of Texas is methodically, inexorably plotting the death of Kenneth Foster, piece by piece, hour by hour.
Some politicians have built their careers on promises of racial equality–careers they’ve too-often put ahead of the lives of individuals like Kenneth when it could make a difference. Texas is bucking a national trend against the death penalty. Texas kills with impunity, at least in part because none of our Democratic elected officials will call out to stop them. This may or may not make them "party" to Kenneth’s murder by some obscure legal standard — the important thing is that the cries for justice have been too infrequent.
We know that unjust laws like the "law of parties" are applied only to the voiceless and never to the powerful with their lawyers and policy advisers. But this doesn’t change the fact that those with power should speak out when their influence could make the difference. Or that it is long past time to call for a halt to the Civil Rights catastrophe that is the Texas killing machine, the fulcrum of the moral abyss that is the U.S. penal system. And if we cannot count on our elected officials to make this cry for justice heard, it will be up to us, at the grassroots–the kind of people represented so well Monday at Charles Rangel’s office–to make it heard.
BEN DAVIS is a member of the Campaign to End the Death Penalty in New York City.
What you can do:
Call the Governor and the Texas Board and urge them to grant clemency to Kenneth Foster:
Texas Board of Pardons and Paroles:
Gov. Rick Perry