Hours before his scheduled execution on Thursday as a disputed accomplice in a 1996 murder, Kenneth Foster won a rare commutation to life in prison after Gov. Rick Perry followed the recommendation of the Board of Pardons and Paroles and granted a death row reprieve.
The case had sparked international protests because Foster, 30, was not the gunman but the driver of a getaway car in a San Antonio robbery spree that ended in murder. He was convicted under a Texas law, known as the Law of Parties, that makes co-conspirators liable in certain cases of homicide.
“It makes me feel wonderful,” said Foster’s father, Kenneth Foster Sr., who had been visiting his son at the death house in Huntsville with other family members when word of the board’s clemency recommendation came. “He was very excited, he jumped for joy,” the elder Foster said.
Since taking office in 2000, Perry has granted death row commutations recommended by the pardons board only twice before, and has once overruled the panel’s recommendation, the governor’s office said.
Foster had run out of options except for a final — and sixth — appeal to the U.S. Supreme Court. His lawyer, Keith S. Hampton, said, “I’m very relieved, for Kenneth and all his supporters.” Hampton said Foster could conceivably be released from prison someday, perhaps after serving another 30 years. He has served 10 years. The pardons board, appointed by the governor, met Wednesday and announced Thursday morning that it had voted 6-1 to recommend commutation. Shortly afterward, Perry, a Republican, accepted the recommendation.
“I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” the governor said in a statement. Perry raised doubts about the law that allowed Foster and the triggerman to be tried together and urged the Legislature to re-examine the issue.
Three years ago, the pardons board, with one vacancy, voted 5-1 to recommend commutation of the death sentence of another convicted murderer, Kelsey Patterson, who had been diagnosed as schizophrenic. Perry turned down the recommendation, and Patterson was executed by lethal injection in May 2004.
The two earlier death row commutations by Perry at the pardons board’s request came this year and in 2004. In 2005, after the Supreme Court halted the execution of juveniles, he commuted the death sentences of 28 17-year-olds. But 163 executions have been carried out under Perry.
Foster was arrested with three accomplices after a night’s armed robbery spree through San Antonio that ended with one of his companions gunning down a 25-year-old law student, Michael LaHood Jr. The jury convicted him and sentenced him to die, along with the gunman, Mauriceo Brown, finding that he should have anticipated that the group’s crimes could lead to murder.