All posts by frkennethee

Rudy Medrano and Jeff Wood


Jeff Wood:

Rudy Medrano:

In Support of Kenneth

Shujaa on behalf of Kenneth Foster / Shujaa, exonerated death row inmate speaks on behalf of and shows support for the family of Kenneth Foster Jr.

Rally to Save Kenneth Foster Jr Austin Texas, July 21, 2007

Mario Africa – Kenneth Foster Rally / Mario Africa of Move talking during the Kenneth Foster Rally in Austin Texas.

Civil disobedience at governor’s mansion for Kenneth Foster

About 200 members of Kenneth Foster’s family, friends, and supporters rallied in Austin to demand that Governor Rick Perry hear the Foster family’s pleas for clemency.In a dramatic turn, six activists sat down to block the gates of the Governor’s mansion in a physical demonstration of solidarity with Foster’s non-cooperation with the criminal justice system. In June 2000, a dozen activists were arrested during a similar protest of the execution of Gary Graham (a.k.a. Shaka Sankofa).

In the face of the State’s unwillingness to engage the Foster family and other supporters, the crowd spread out across the street, blocking traffic for forty-five minutes.

Welfare Poets – Kenneth Foster Rally Austin Texas July 21, 2007

Rally to Save Kenneth Foster 8/21/2007

On August 30, 2007, Texas, the state that executes more people than any in the country, plans to deliver a lethal injection to Kenneth Foster, Jr. While this may seem like nothing out of the ordinary for a state that will perform its 400th execution this summer, Kenneth’s case is unique. He killed no one. The state of Texas will be the first to admit this. It seems unthinkable that a man who did not even touch the gun that ended the life of Michael LaHood, Jr. on August 14, 1996 in San Antonio, Texas would be sent to his death for such a crime. What makes this possible is the Law of Parties. A number of states have laws that enable prosecutors to hold those merely present at the scene of a crime legally responsible. Texas is the only state that applies this statute in capital cases, making it the only place in the United States where a person can be factually innocent of murder and still face the death penalty.

Save Kenneth Foster – Liliana Segura & Lawrence Hayes speak

NYC Press conference on case of Texas death row inmate Kenneth Foster, scheduled for August 30 execution, and 400th Texas execution.
Liliana Segura, Campaign to End the Death Penalty, NYC
Lawrence Hayes, Former Death Row Prisoner

UPDATE: Kenneth Foster Jr. was GRANTED CLEMENCY!

——- OLD UPDATE: Board votes 6 to 1 for CLEMENCY! All pressure on Gov. Perry NOW! Execution scheduled for 6 p.m. tonight.
Put the pressure on Perry.

Save Kenneth Foster – Ronnique Hawkins Speaks

Spoken word by Kenneth Foster

This performance of his poetry was recorded on July 25, 2007 at the Polunsky Unit in Livington Texas by David Mass.
Video is from the Rally to save Kenneth Foster on July 21st, 2007 in Austin Texas

Save Kenneth Foster – Jeff Deskovic Speaks

NYC Press conference on case of Texas death row inmate Kenneth Foster, scheduled for August 30 execution, and 400th Texas execution.
Jeff Deskovic, an innocent man, spent 16 years in prison for a murder he did not commit. He was exonerated through DNA evidence.
To read a NY Times article about Jeff Deskovic go to:…

kenneth Intervista
Intervista a Kenneth Foster

A message from Kenneth Foster’s Attorney
Keith Hampton, Kenneth Foster’s attorney talks during the Aug 30th victory rally at the Governor’s mansion in Austin, Texas

The Shock Doctrine in Texas Prisons / By Kenneth Foster

THIS ARTICLE is an analysis of the torture tactics and repressive methods used in administrative segregation prisons across Texas, and generally in America. To highlight these matters and how they’re applied, I want to draw a parallel with Naomi Klein’s book The Shock Doctrine: The Rise of Disaster Capitalism.

The Shock Doctrine is a book that documents the brutal economic tactics pioneered by University of Chicago professor Milton Friedman. His approach to economics became orthodoxy in almost every corner of the globe. It has been described as “neoliberalism,” “free market,” “laissez-faire capitalism” and “globalization,” but the term that would stick in the minds of most people is “shock therapy.”

“Shock therapy” has been applied both economically and physically. I will focus on the latter, but let me first talk about the former, because the economic shock doctrine allowed the physical shock doctrine to thrive.

As Naomi Klein explains, in the 1950s, the CIA funded the experiments of Dr. Donald Ewen Cameron at McGill University in Canada. Cameron’s goal was to break people’s minds down, creating a “clean slate” upon which to write. In addition to so-called “talk therapy” and isolation techniques, Cameron also experimented with pharmaceuticals and with electroshock. This research made an impression on the CIA, particularly the use of electrical shocks, not just to inflict pain, but with the goal of erasing structured personalities so others could be created.

As Klein points out, there is a relationship between this physical “shock therapy” and the economic “shock therapy” championed by Friedman, who once said:

Only a crisis–actual or perceived–produces change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around. That, I believe, is our basic function: to develop alternatives to existing policies, to keep them alive and available, until the politically impossible becomes politically inevitable.

Crises were induced by political deceit, governmental repression and other pressures, giving Friedman and his “Chicago Boys” the chance to introduce their policies. Among the victims were Chile, Poland and Eastern Europe, and countries of the Middle East.

While reading about the tactics perpetuated on the citizens of these countries–shock therapy in both economic and physical forms–I couldn’t help but to get a lump in my throat, as I recognized many of them taking place right here today, in Texas prisons.

Whether consciously engineered or unconsciously mimicked, the similarities exist. And nothing is being done to change them. Regardless of where they are implemented, human beings will respond to the kind of conditions caused by shock therapy in the same way: insanely, suicidally and self-destructively.

None of this should surprise any reader, as this is part of the history of the U.S. government. From Latin America to Vietnam, from the Middle East to right here in the U.S., with the Native Americans to the Black Panther Party), the U.S. government has been behind coups, assassinations, massacres, deliberately introduced diseases, covert warfare and much, much more.

That legacy continues in places we don’t see and don’t hear about. Sometimes, however, these places are a lot closer than we realize.

As you read this, know that the facts are at the touch of your fingertips. Google it–but when you read it, don’t just walk away. Organize–because as Howard Zinn stated, “People, when organized, have enormous power, more than any government.”

– – – – – – – – – – – – – – – –
The Torture Chambers

There are around thousands of prisons and jails in the U.S. and nearly 2.3 million people filling them, as of the end of 2010. Estimates of the numbers of prisoners held in solitary confinement vary, running as high as 80,000 at any given point in time.

In Texas, there were 152,000 prisoners in the state as of the middle of last year, the most of any state in the country. Some 8,100 of them are held in “administrative segregation,” according to the Solitary Watch website: “They are held in isolation in cells that measure 6-by-9-feet for 23 hours a day, with one hour to exercise in a small, fenced yard. More than 2,000 of them have a diagnosis of serious mental illness or a developmental disability.”

Then there are the supermax prisons, like the federal supermax in Florence, Colo., where conditions of isolation surpass anything you could imagine. The shapes and sizes and architectural designs vary, but the one thing common among them all is not just punishment, but the attempt to humiliate and completely break the mind and spirit.

While the supermax prisons are the most extreme form, Ad Seg prisons also create a living nightmare for those who are subjected to their oppressive tactics. What are we breeding in prisons like this?

In the Abu Ghraib prison in Iraq, U.S. forces carried out a wide range of interrogation procedures based on the Guantánamo Bay model, including deliberate humiliation, exploiting fears, sensory deprivation and sensory overload–all of which exist in Ad Seg prisons in America.

The impact is obvious. As a sergeant with the 82nd Airborne said of Abu Ghraib, “If he’s a good guy, you know, now he’s a bad guy because of the way we treated him.” So what do we think will happen when these tactics are used on the 2.3 million prisoners in the U.S. What do we think returns to society?

These torture chambers, aka prisons, are built around the vision of what the government describes as “behavior control.” The goal is not only to fully control the prisoners by breaking their will, but to control people throughout society by making an example of some.

Torture is as American as apple pie. But as our double-tongued political representatives , torture isn’t torture, but “coercive interrogation,” and abuse isn’t abuse, but “softening up.”

The CIA have been long perpetrators of such methods, having event produced handbooks like the infamous KUBARK manual for U.S. personnel and other governments to follow. These methods are designed to induce, deepen and sustain “shock,” which opens prisoners to suggestion and to make them comply.

Ad Seg induces such states with sensory deprivation. There is no human contact in Ad Seg. Not all Ad Seg prisoners are violent offenders. A person could be placed in Ad Seg for possession of drugs or even a cell phone while incarcerated. Nevertheless, they are cuffed and leg shackled everywhere they go. Slots in the doors at some of these prisons are made at thigh level, so when being cuffed the prisoner, regardless of age, weight or health, must squat down and throw his arms out the narrow slot behind him for cuffing.

There are no TVs, no in-cell arts or crafts to indulge in, and no educational programs to promote rehabilitation to participate in. The only activity is to sit and rot. The prisoner must find ways to keep from mental decay. If he looks to the administration for help, he’s as good as dead–mentally, spiritually and maybe even physically.

In Texas prison units like McConnell, there are no intercoms to call officers–no buttons to press for emergencies. To gain an officer’s attention, inmates must pound and kick the cell doors, which is commonly ignored unless it is done continuously). Inmates who have suffered from seizures, diabetic attacks or other conditions have often been left to lie on the floor for hours. This banging, yelling, screaming and pounding is part of the sensory overload that wreaks havoc on the mind.

– – – – – – – – – – – – – – – –
At Home and Abroad

The Bush administration approved a series of special interrogation and incarceration practices as part of the “war on terror,” to deal with suspected terrorists. But we find the same conditions in Texas prisons. They include:

— The Guantánamo Bay prison camp used isolation and deprivation of light at some points, and at other times, overloading prisoners’ senses with light and pounding sounds.

Pretty much all Ad Seg cells mimic this. Our cells are barricaded by steel. The fronts of the doors are covered by steel mesh and plexiglass. The cells have large lights that illuminate your cell for counts, feeding or officer interaction with inmates. Your senses are starved of stimulation. Your only contact is with concrete, steel or bright lights. To put pictures on your wall is an infraction of the rules.

— CIA manuals on interrogation state that “windows should be set high in the wall, with the capability of blocking out light.”

At Texas Ad Seg prisons like the McConnell, Connally, Polunsky, Telford and Michael Units, the windows are built in exactly this fashion–practically at the ceiling. This helps put prisoners in a deep disorientation and shock in order to force them to make concessions against their will.

— Jose Padilla, arrested in May 2002 at Chicago’s O’Hare airport for allegedly intending to explode a “dirty bomb,” was taken to a Navy prison in Charleston, S.C. He was subjected to tiny cells, his eyes were covered with black goggles, his ears were blocked with heavy headphones, and he was forbidden to have a clock or radio.

Similarly, cells at Ad Seg prisons are relatively small, and while we don’t have goggles or headphones forced on us, we face visual and audio deprivation from steel cells. Our outside recreation yards have 30- or 40-foot-high walls, where the only thing to be seen is the sky. Prisoners in Levels 2 and 3 housing (punitive levels) are denied radios and sometimes calendars. This creates disorientation and draws a wedge between the prisoner and human activity.

— In her book, Naomi Klein quotes prisoners of the CIA or U.S.-allied regimes who were subjected to rats and roaches in their cells. According to Klein, the Italian Muslim cleric Hassan Mustafa Nasr was kidnapped off the streets of Milan by a group of CIA agents and was rushed to Hosni Mubarak’s Egypt, where he lived for 14 months in a cell with no light and where, he states, “rats and roaches walked across my body.”

There’s not a prison I’ve been in (three thus far) that have not had rats and roaches. Ants pile into cells in astronomical numbers. Prisons built in rural areas also attract skunks, bees and other insects. But the rats and roaches are the most common occupants of the cells.

— A torturer for the government in Honduras once described the practices that the CIA trained him to use, and among them was to purposely serve bad food.

In U.S. prisons, whenever there is a budget crisis in the state–which seems like always–prison food is always targeted first. This isn’t just an Ad Seg issue–it affects every prisoner. Especially since September 11 and the ongoing wars that ensued, prison food has declined in size and quality.

For example, before 2001, prisoners used to receive a small dessert on each lunch tray. That has trickled down to one a week. Portions have generally declined to kiddie size, especially during 30-day lockdowns. More stews are served, which is really just a slop of potatoes, peas, carrots and alleged beef, floating in a greasy sauce–these and noodle meals are served four to six times a week. There are No fresh fruits or vegetables, only the same overcooked or undercooked vegetables on a daily basis.

Real milk is also a thing of the past–only powdered milk is served in Texas Department of Corrections. Ironically, under Chile’s horrendous dictator Augusto Pinochet, one of the junta’s first move in cutting “luxury items” was to eliminate school milk programs. Obviously, Texas sees milk in the same light: a “luxury.”

When human beings are subjected to the vilest of conditions, what can be expected of their mental and behavioral state? We can avoid reality, but we cannot avoid the consequences of reality.

– – – – – – – – – – – – – – – –
The Psychological Abyss

At Guantánamo Bay, a section called D Block was reserved for detainees in permanent delusional states. These were people who, after extensive use torture, were exhibiting behavior consistent with extreme psychological trauma–talking to non-existent people, hearing voices, etc.

Naomi Klein quotes James Yee, the former U.S. Army Muslim chaplain who on Delta Block, describing these prisoners. “I’d stop to talk to them,” Yee said, “and they would respond to me in a childlike voice, talking complete nonsense. Many of them would loudly sing childish songs, repeating them over and over. Some would stand on their steel bed frames and act out childishly.”

Sabin Willett, a lawyer who represented several Guantánamo prisoners warned that if the situation continued, “you’re going to have an insane asylum.”

In some Texas Ad Segs, I believe it’s at that same point. While on death row, I lived in an Ad Seg cell for seven years. I’ve witnessed some of the above behaviors and worse, and I also see them going on in McConnell’s Ad Seg.

In death row Ad Seg housing pods, I’ve witnessed men cover themselves in feces, mutilate themselves with razors and commit suicide. I’ve seen men completely stop talking to other inmates and even stop showering.

Certain inmates suffer from extreme mental illness, and yell and scream all day. Some, as Yee described of the Guantánamo prisoners, make baby noises. One inmate would tap, using a cup on his door, the theme music to the TV show Green Acres for hours at a time each day.

Another recurring theme in Ag Seg prisons is inmates trying to get an officer’s attention by yelling, “I’m gonna kill myself,” over and over. Since McConnell’s Ad Seg is not equipped with intercoms, inmates must scream and yell. When ignored, inmates must kick on the steel door, which echoes like thunder rolls.

Other inmates suffering from psychological illnesses ramble for hours at a time. they talk about electronic devices planted in their rectums, how their food has been poisoned, the poisonous gas is being sprayed in their air vents. Many times, I’ve heard government or Masonic conspiracies fill their talking.

Jose Padilla, the man who was taken to the Navy prison in South Carolina, had these kind of conditions forced on him for 1,307 days, and by the end, as his lawyer told the court, “The extended torture of Mr. Padilla has left him damaged, both mentally and physically. The governments’ treatment of Mr. Padilla has robbed him of personhood.”

What was forced upon Padilla is calmly, subtly and consistently being administered to men and women in Ad Seg prisons across America. Some prisoners will never leave Ad Seg, and so the 1,307 days that Padilla endured will easily be surpassed. So will the trauma he suffered.

– – – – – – – – – – – – – – – –

In The Shock Doctrine, Naomi Klein writes:

When prisoners are asked how they survived months or years in isolation and brutality, they often speak about hearing the ring of distant church bells, or the Muslim call to prayer, or children playing in a park nearby. When life is shrunk to the four walls of the prison cell, the rhythm of these outside sounds becomes a kind of lifeline, proof that the prisoner is still human, that there is a world beyond torture.

For those of us who keep our sanity, each has a different testimony as to how we survived. For some who moved up to less restricted housing, it may have been a radio or just a calmer environment. Maybe it was visits. But for those who had none of these, I cannot say. Perhaps it’s as Nietzsche said: “He who has a why to live for can bear almost any how.”

The path to survival isn’t a blueprint that can be written down and passed along. With each day, the blueprint blows away in the sands and must be rewritten. For those of us who “hold on,” we attach to something: a picture of our children, a life-changing book, prayer, meditation, exercise…something! We grasp and hold on for dear life. We either find a way, or make one.

But as for what I’ve seen in Texas prisons, the only difference I know between what we’re told went on at Guantánamo or Abu Ghraib or other overseas interrogation centers and what we experience is no electroshock. But don’t hold your breath and say it will never happen. The Texas Department of Corrections already utilizes pepper spray, gas canisters and stripping inmates of clothes, property and visits as punishment.

According to Klein, Milton Friedman’s vision of “shock therapy” centers on the “speed, suddenness and scope of the economical shifts would provoke psychological reactions in the public that facilitate the adjustment.” Through this, shocked societies often gave up things they would otherwise fiercely protect–just as prisoners enduring the same conditions would give up the names of comrades, denounce faiths and be rendered a pile of putty, easily molded by their interrogator.

Worlds where I live, where Padilla lived, where Yee worked, are flourishing. They are not movie scenes or pages in a book. They are real, they are serious, and they are deadly. What I’ve pointed out is simply an observation from a man who is, despite prison, determined to live, thrive and survive, because I believe in what Howard Zinn once wrote:

Revolutionary change does not come as one cataclysmic moment, but as an endless succession of surprises, moving zigzag toward a more decent society. We don’t have to engage in grand, heroic actions to participate in the process of change. Small acts, when multiplied by millions of people, can quietly become a power no government can suppress; a power that can transform the world.

Do you believe?

= = = = = = = = = = = = = = = =

What you can do

Find out more about Kenneth Foster at and

You can write to him at:

Kenneth Foster

#1451768, Robertson Unit,

12071 FM 3522,

Abilene, TX 79601



Penitentiary Swag: The Beast That American Fashion Has Made

What would you think if I told you that amongst America’s prison blues, prison uniforms and prison commonality there existed a thriving and flourishing fashion? A love for style that not even concrete walls, barb wire, and aggressive repression could smother?

Prison has changed drastically over the years. Even in my “short” 17 years I have seen the dynamics (from policy to prisoners) change. For the latter, the greatest change, undoubtedly, is due to the wave of young inmates that are now flooding the system. More and more, younger generations are filling these cages and with that is coming more under-educated, rebellious, undisciplined spirits. These 19, 20, and 21 year-olds are spending their childhood behind bars. No football rallies, no raves, no job hunting. But, they’re not letting prison walls keep them from experiencing that childhood.

Over the past 10 years, fashion has taken over the imagination of the American public. America’s Next Top Model, Kardashian’s, magazines showcasing the work of Alexander Wang, and Marc Jacobs. These trends now make it to the “hood.” Fashion is not just the clothes you wear, but HOW you wear them, and also the accessories that go with them–meaning jewelry, iPods, iPhones, eyewear, and anything else that creates an identity for the consumer. While TDCJ seeks to suppress all of the above and imposes penalties for those that seek to venture outside of the protocol lines (shirts tucked in, hair cuts low, no facial hair visible–no signs of the former person you used to be), these youngsters have refused to abide by those rules. Penalty and all. Though not always able to flaunt their style in the open (trying to avoid the easy persecution), like secret societies, these youngsters pull back into their small corners of the world and put on their own covert mardi gras. However, upon close inspection, you will find the signs of American fashion in fluxation.

While at times it can come off shrewd, rude, or overly flamboyant, you truly can’t help but to smile at these men’s desire to live, smile, and simply retain the last little pieces of what it means to be human. Because what it means to be FULLY human is to have color, flare, and edge. Freedom of expression. Where the inmate lacks the access to colors, sounds, and smells, he makes up with sharp creativity over the plain white, dull crew cut and wrinkled uniforms. For anyone that has walked within these walls (as visitor, resident, or employee), they will know exactly what I’m talking about. For those that don’t, pull up your seat for your first Penitentiary Fashion Show.

Long gone are the days when you only see dingy white uniforms trekking their way up and down the hallways. These days you will find crispy, creased, starched uniforms so well pressed that you could stand them up in a corner. Just like hustlers on the corners selling bootleg movies, knock-off clothes, you find the convict slanging the bags of starch, bleach, and anything else you can think of for the demanding customer. Cardboard hard, these inmates don their uniforms with attitude so funky you’d think they were stepping out a limousine at the prom. The sad truth is many have never been to a prom nor will they ever go to one. For most, weekend visits are the prom. A time to show out and show up and bask in the hugs and kisses of loved ones. In the place of fresh Puma tennis’s, guys meticulously clean their prison bought tennis shoes with tooth brushes and rub them down with soap soaked rags to make them look so tight white you’d think they was walking on ice cubes! Defying the prison administration at every interval you find shoe laces zig-zag, criss-crossed, and hanging out wildly. In the lack of Timberlands, guys shine up their black boots so tough that the sun reflects off of them. Some buy liquid wax to coat the boots with shiny gloss. The laces be blow out-dangling, maybe tied in braided loops, others with trinkets carved from pen tops or plastics to make it look like free-world medallions. Pant legs are rocked with one cuff tucked under the tongue of the boot or tennis shoe to make the fashion more visible. It’s not fashion if it’s not flashing! And if you look just close enough on the Riddell or New Balance shoes you might find Jordan, Nike or Fila logos neatly painted on them. Life refusing to die!

Hair styles refuse to conform to the traditional buzz cut. Don’t be surprised to see razor fades, low fades, high -n- tight, and south sides. Taper fades, one blend fades, or beehive waves. It’s blasphemy to not have a precision edge-up. Crooked edge-ups can quickly lead to a scuffle. Not having store bought hair products or accessories is met with homemade do-rags made from socks or trimmed and sewn sheets to designer satisfaction that keeps waves and curls intact. Special concoctions of grease and vaseline to mimic the old thick Dax and Murrays grease is whipped up in jars and pulled out for special occasions. Don’t gawk, just smile like we do.

For those that take the bucking system to the next level, keep your eye on the gold rings that adorn fingers or the Fossil, Quartz, and Kenneth Cole watches that cover wrists. Let’s not forget the Prada, Versace, and Ray Ban frames that grace faces. It’s all within these walls.

We live in a culture that puts fashipn on a pedestal. It’s practically a god-with songs named after “Tom Ford,” “Versace” and every other brand names mentioned in songs. These guys aren’t ready to forger what it feels like to have these things. these youngsters are coming into a harsh environment straight from eating fast food everyday and living even faster lives. Polo clothes, sports paraphernalia, high tech mobile devices–there is an addiction to these items. And prison is not killing that fixation. If anything, the denial of them enhances it. It reflects even in the change of contraband that flows within the prison walls. In a place where snuff, tobacco, and the joint used to be products of demand, you now find Ecstasy (up to $25 for a triple stack), Vicodin ($5-10 a pill), hydro marijuana ($50 a gram), K2 weed ($50 for 2 grams) and even hydroxy cur for those caught up in the Get Ripped society. The cell phones are a no brainer–going anywhere from $800-1,000, unimaginable risk are being taken to get hands on them. From watch phones, to flip phones, to iPhones–it’s all wanted. To explain how that smuggling process goes (which we call “drops”) would take another writing entirely. Let’s just say that 007 would be impressed. But, this is the beast that American Fashion has bred. As Lil Wayne’s TRUKFIT clothing line expresses-The Reason U Kill For It!

I wonder how the Sean John, Roca Wear, Ralph Lauren, and COOGI makers would react to knowing just how deeply rooted their stuff has become embedded into the hearts of today’s youth. On the prison pods you’re not finding inmates with identical wear. Everyone seeks to stand out from the next. How many ways can one change up a pair of white socks, shirt, and shorts from the next person? As many ways as you can mix up the wardrobe in your closet. Everything we wear reflects who we are. You might find the Mexicano crew rocking knee-high socks, black canvas shoes and a neatly ironed handkerchief in the back pocket. You’ll find guys swagged out with 2 pair of boxers AND a pair of gym shorts over them. Tank tops are stitched (as clean as a sewing machine could stitch) to match body forms to perfection. Tattoos and muscles on display. And don’t be mistaken–it’s not just for the attention of other inmates. Relations amongst inmates and female officers is very much alive. No wonder inmates smuggle in cologne to drop in their lotion bottles to dab on when certain female officers are working the block or to go to visit to see baby. Everybody is trying to GET IT. “IT” being a taste of humanity!

In a place that seeks to crush the human nature, there is no bigger fight than the one to retain it. Double socks, slides, and a bleached towel draped over the shoulder like a day on the neighborhood corner is a sight you’ll find on the pods with guys posted up on the dayroom walls like it was Sunday at the park. Tacos, nachos, homemade cakes, cups poured up with big red and sprite where there once was a BBQ pit and an ice chest full of cold brews.

In many places this is what prison looks like. You sometimes have to dig for it under the slop served in the chow halls or the yelling from the guards in the hallways, but it’s there. Inside Seg, everywhere! In the middle of the crop fields there’s always the inmate that can’t wait to get back to the pod to shower, throw on a 2 sizes too big shirt, drop the homemade alum chain that hangs at navel height over the head and sit down to talk some mess over Big Six dominoes. Somewhere on the stairs someone is sipping homemade hooch, in the shower someone is probably smoking a mango crush joints and perhaps in the cell, behind the curtain, someone is having phone sex with their baby’s mama! Or chatting on Facebook.

I’m sorry America, but this is what your Reality Show, 4G, Social Media, latest trend world has created. Prison is just a society within a society. It is the microcosm trying to imitate the macrocosm. It is what it is. And no matter if you choose to hate it or love it, America, there it is…, style, bravado, ego, culture….trying to get it’s shine on….just like you!

(Author’s Note: The above pertains to Texas prisons and is based on personal experience. I cannot speak for how it is in other states.)

Shock Doctrine Texas Style, Part 2 :

Analyzing the Universal Tactics used by the Prison System.


« Punishment is as old as society », expressed Donald Clemmer (author of « The Prison Community »). But, what is the state of punishment in our world today regarding prison? Better yet, perhaps, the question should be- what are prisons today? Worldwide there seems to be a blueprint that has been executed in prison construction, control and continuance. While from country to country you will find that there are different conditions in the prisons and different means behind them, what can be said for the alleged “most civilized Nation in the world” to be submerged in some of the most brutal prison conditions and tactics across the globe? What is the intent behind it? The answers we encounter may not be pleasant, but they must be faced with reality.

While many texts, articles, studies and stats are used for this writing, the book “Language, Resistance and Revival” by Feargal Mac Ionnrachtaigh is a heavy influence for it. This book documents the Irish Republican prisoners’ fight to save their culture through the teaching of their language while facing the brutal conditions in North Ireland prisons. To understand this plight the Irish Republicans took on, one had to first understand the politics of prison and the language of resistance- which was broken down in the Foreword by Phil Scranton. And it’s that Foreword which was the source of inspiration for this writing. What Scranton was able to do was build a universal vision for how oppressive regimes use unmerciful tactics within their prisons. What I seek to do in this writing is add to those oppressive methods by exposing what’s going on within America’s prisons, namely Texas (not simply because I have experienced the tactics firsthand, but due to the fact Texas has stepped into the forefront as ground zero for the movement).

Shock Doctrine Part 1 drew parallels between torture tactics used by the government and military in so-called terrorist situations and those being used in modern day prisons- mainly Administrative Segregation (aka solitary confinement- be it a part of a prison or an entire Supermax). Ad Seg remains a hidden part of the American society- a disgraced, mutated creation that lurks in the shadows. What does the existence, and growth and development of such apparatuses mean for the sake of our society? Only you- those who will surely bear the brunt end of it- can say.


Phil Scranton does an excellent job in giving the parameters of what prison life is like on the inside. The information he brings shines light to what is universally being felt within these walls- walls that no longer hold the same aims from whence they were conceived. What was once designed to contain and rehabilitate those who broke the law in society is no more. Scranton highlighted a new scheme that has gradually become status quo, that “imprisonment provided the means for removal of those identified as ‘social’ pariahs but also those who were categorized as ‘enemies of the state’”. Instead of being an institute for reform, it is now a utensil used to suppress and dismantle.

What the prisoner goes through is a complete transformation process- one not of moral nourishment, but pure humiliation and malice that renders them to being vitiated humans: “entering prison, the convicted prisoner loses personal identity and civil rights. No longer a citizen, the prisoner wears convicts’ clothes, becomes a number, hands over personal possessions and surrenders movement through space”.

The everyday “space” that people take for granted everyday become monumental objects of obstruction. Scranton notes:

In prison, the ‘door’ and the ‘clock’, central to the taken-for-granted world of everyday life, are invested with new meaning. The controlling mechanisms of the total institution function at the discretion of others”.

Through these prisons, America makes a profound statement to the world and to its own citizens:

  • Americans spend $50 billion a year to imprison 2.5 million people- exceeding any other nation.

  • The United States has 5% of the world’s population and 25% of the world’s inmates.

  • While 1 out of every 42 Americans is now actually in prison, 1 out of every 32 is either in prison or on parole from prison. This means 6.7 million adult men and women – about 3.1% of the total US population- are now members of America’s “correctional community”.


There’s a virus in the bloodstream of America. America was built on the back of other people’s labor. It’s in its roots and fabric. And in truth, the process has never been alleviated. It has just advanced in the style in which it’s carried out. There’s no greater money than free money, and prison provides that for those with the power in this country (be it financially or judicially); and there’s no greater crime than legal crime, which the 13 Amendment provides.

United States Constitution, 13th Amendment.

Section 1. Neither slavery nor involuntary servitude, EXCEPT AS A PUNISHMENT FOR A CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED, shall exist within the United States, or any place subject to their jurisdiction.

This doctrine ushered in the evolution of laissez-faire capitalism to mercantile capitalism, where government begins to regulate business, and industry builds as the motor and impetus for governing. Infact, by 1871, the 41st Congress by way of the District of Columbia Organic Act, established the United States of America as a for-profit commercial enterprise, and it has operated ever since as a corporate entity. Today, in the law books under 28 U.S.C. §3002 (15) (a), it is held that the United States is a “Federal Corporation”.


Profit is the new motive for America’s prisons. It is no longer an institution for reform, rather an Industrial Complex that brings in people and pushes out products. U.S. prison construction and upkeep is a $30 billion a year business. Fortune 500 companies like TWA, General Electric, MCI, Chevron, IBM and Bank of America profit. They are either benefiting from cheap labor, investing directly in new prison-building or designing and selling prison paraphernalia like stun guns, handcuffs, surveillance cameras, cellblock furniture, pepper gas and even restraining chairs.

In turn, prisons make their money back and flip their profits 100 times by making inmates provide slave labor to produce commodities such as clothes (labels like No Fear, Lee Jeans, Trinidad Tees), furniture, office equipment, food crops and livestock. Inmates also pay the high cost of extreme phone rates- six times the normal long distance rate. In Texas, commissary alone can gross up to $40 million annually.

Private prisons are now getting their piece of the pie. Corrections Corporations of America (CCA), created in 1983, leads the way with approximately 61 federal and state facilities in 20 states. After a 10 year run leading the path, the rise in lifers have mysteriously began to manifest. There were fewer than 3,000 “lifers” in 1992. As of 2005 there was 6,431 prisoners serving life sentences, which was a 12% rise from 2004. These private prisons net upwards to $60million a year. And not surprisingly, many CCA staffers have political connections (affiliates who keep them thriving) to which donations flow freely. It’s not hard to tell how these things interrelate.


Texas is home to approximately 125 prisons. Around 150,000 prisoners. In the face of staff shortages (most prisons have just under 3,000 prisoners and should have close to 570 guards [though many don’t]), Texas continues to allow its prison numbers to BOOM while its parole rates plummet.

Behind the razor-wired fences of Texas prisons, there’s 22 that house Ad Seg prisoners. The most of any state. The count is approximately 5,200 prisoners (around 188,000 nationwide).


What solitary confinement was made for has turned into something even more sinister than its conception. The concept- originally conceived in 1829- was inspired by Anglican and Quaker theology and designed to cultivate penitence and spiritual enlightenment. However, in the process of trying to bend the spirit, man would have to bend his body first.

The model- first established in the Eastern State Penitentiary in Philadelphia- would be mimicked the world over. As Jeff Tietz, in his article “Slow-motion torture” broke down- “At Eastern State, hallways with 30-foot-high vaulted ceilings led to cells whose low doors forced prisoners to make a penitent’s bow. Inmates spent 23 hours a day in clean, near-silent cells beneath a circular glass skylight known as the ‘eye of God’”. Not much has changed with the white-walled, one shelf, steel bunk, sink and toilet, and huge light fixture set-up. Evenmore with the conditions and tactics.


As Phil Scranton informs us:

In design the ‘new prison’ was informed by reformers such as Jeremy Bentham, whose ‘panopticon’ design was a radical proposal for mass containment of prisoners held in individual cells. Designed like a bicycle wheel, the hub offered a central observational platform on several levels from which corridors landings reached out like spokes, with cells housing prisoners on either side. The panopticon maximized surveillance while minimizing the number of guards required. Prisoners alone in their cells, silent in work and with little opportunity for association, were placed under constant observation. Surveillance not only monitored behavior, it guaranteed security.”

In the early 90’s in Texas a very similar “new prison” blueprint was laid out for around 10 facilities: Telford, Clements, Allred, Styles, McConnell, Connally, Polunsky, Hughes, Robertson and Michaels (the very first). These prisons- down to the parking lot and tree shrubs- are designed exactly the same.

The Ad Seg building has 6 pods made up of six sections (A-F) totaling 84 cells. Each section has 7 cells upstairs and 7 cell downstairs. Section A-F are designed in a circle-like shape that surrounds a picket in the middle- similar to the bicycle wheel design that allows the picket to observe each section and each cell.

Inmates are housed in these cells 23 hours a day. They are fed in the cells. When they leave the cells they are stripped and handcuffed. They are given 1 hour of recreation a day in either a small caged dayroom area or the outside yard which is a mere concrete box with walls that shoot up 40 feet high. There’s no T.V, no games, no programs, no nothing. Just you versus the clock and the door.

Though all of the 22 Ad Segs are cruel and unusual, these 10 provide the most streamlined repression. As Scranton highlighted:

While walls are barriers to access, they are also barriers to information. Each prison operates within a custodial network under the governance of a prison service and the state’s justice department. Yet each prison is a product of its distinctive history, reputation and organizational culture”.

As the administrations try to further villainize these men and women with talk of gangs, drugs and violence, they don’t take into consideration the effects of their own guard gangs, psycho-tropic drugs and guard-on-inmate violence. As forensic psychiatrist Dr. Kupers (in the article “Solitary confinement poses a danger to everyone”) notes: “It is stunning how pervasive a known set of serious symptoms in this population are, including massive free-floating anxiety, incessant cleaning or pacing in the cell, paranoid ideas, sleep disturbances, problems concentrating and remembering- many prisoners said they have given up reading altogether because they cannot remember what they read a few pages back- and mounting anger, along with fear the anger will get out of control and they will get into further trouble”.

In her article “U.S. prison conditions far worse than Guantanamo’s” Daphne Eviatar says “most secure federal prisons are actually far more draconian than they are at Guantanamo Bay”. Peter Finn at the Washington post said- “For up to four hours a day, Khalid Sheik Mohammed, the self-proclaimed mastermind of 9/11 attacks, can sit outside in the Caribbean sun and chat through a chain-link fence with the detainee in the neighboring exercise yard”. Nothing close to the extreme isolation of the federal supermax prison in Florence, Colorado. Or even the ones in Texas like the Estelle and Gib Lewis high security.

As the despair rises, so does the mental-illness and even the suicides. In 2006, in California, there were 41 suicides. A 17% increase from 2005. In Texas, in 2006, there were 24. Up from 22 in 2005, according to article “Inmate suicides linked to solitary” by Kevin Johnson. After Kentucky set up a mental health program for those in the state’s 83 county jails in 2004, suicides in the jails fell 47%.

As much as he did for this country, his words are still not taken heed to, but as Dr. Martin Luther King Jr. stated- “Darkness cannot put out darkness, only light can do that”. Every nation must develop an overriding dedication to humanity as a whole in order to preserve the best in their individual societies.


Under this new regime, the prisoner’s life turns into a debacle. When Donald Clemmer said that punishment was as old as society, he also added “but when a policeman or prisoner guard in his official capacity as a representative of the governing body punishes man, society itself is involved in its historical, political, economic and sociological vision”.

That vision, as Erving Goffman (from ”Language, Resistance and Revival”) cited, becomes : “territories of the self are violated, and the prisoner is shaped and coded into an object. Thus the self is curtailed, mortified and any expression of defiance receives immediate, visible punishment”.

What unfolds under such a system is inmate vs. guard, and in the wake of that misery, inmates turn against inmates. The rage bred turns into self-hate, then into self-destruction which keeps the prison authoritative concept alive and the prison beds full.

From day to day, prisoners wake and must be vigilant to what is to come. Scranton highlighted the experiences Oscar Wilde had at Petinville and Wandsworth “under a regime of hard labour, virtual starvation and spartan conditions including a bed without a mattress”.

Wilde elaborated- “I look from the door at who’s at the desk and I know whether I’ll have an all right day or a bad day”. Current days are no different as America’s economy fluxuates and the stress and strife of everyday life is emitted from the guards on a daily basis. These guards bring their problems and miserable attitudes into the prison and inflict them upon the prisoners. One Ad Seg units like Robertson where guard abuse is rampant, prisoners often mark the guard’s shifts on calendars to monitor which days good or bad officers may work. To avoid such officers, inmates usually refuse their recreation time or shower just to avoid conflicts with the officers or to keep them from entering their cell to carry out reckless shakedowns.

Officers are instilled with a code in their Academy training. That code consists of the officer being right and the inmate being wrong. That’s reflected in how officers are told to never apologize to an inmate. When officers are asked for something they are told to never confirm what they can or cannot do, but rather to say- “I’ll see what I can do”. Officers are told to never conversate with inmates for more than a couple of minutes. Officers are taught that all inmates break rules and/or have contraband. Even before the officers step into the prison, they have been taught how to be cruel and indifferent. Some take that to heart. In return, the administration will support such actions and do not hold the officer to the professional standard they are bound to (known as the Employees General Rules of Conduct outlined in Article 4413 (401), Section 1.10(b) V.A.C.S). This is an all around Texas creed for as in society they say “Don’t Mess With Texas” and in prison TDC’s motto is “Taking Care of Our Own”.

Today, the words of Wilde still ring true:

prisoners are introduced to deprivation of incarceration, standing naked for inspection, restricted access to underwear and basic necessities, lockdown and unlock, shared cells, isolation cells, poor food, vindictive guards, the persistent threat of violence, restricted visits, inadequate healthcare, unaffordable telephone calls, mind-numbing boredom”.

The ACLU’s National Prison Project asserts more than half of all prisoners in solitary confinement are either “mentally ill” or “cognitively disable”. Nevertheless, assignment to isolation cells is, by prison officials, without appeal to any authority beyond the correctional system. As detailed in the “Slow-motion torture” article:

repeated trauma lastingly alters the brain. Anger and anxiety provoke a prehistoric response: the adrenal gland releases hormones that trigger the firing of neurons in the brain’s limbic structures, which react in a host of ways- by ordering the production of more coagulants, so we’re less likely to bleed to death; by increasing muscle strength, so we can stab a predator with more force. When anxiety is chronic, as it is in solitary confinement, the adrenal gland and the limbic structures become more direct, and the limbic structures expand to accommodate the increase in signal volume. On brain scans, enlarged limbic systems light up with abnormal speed and brightness. Simultaneously, activity in the prefrontal cortex-responsible for judgment, analysis, a sense of conscience- decreases”.

Even Charles Dickens (after touring Eastern State Penitentiary in 1842) exclaimed-

I hold this slow and daily tampering with the mysteries of the brain immeasurably worse than any torturing of the body”.


From day 1, the American Government has denied that it had political prisoners incarcerated in its prisons, because to admit they do would admit (according to the definition) they have a “Political prisoner, which is a person incarcerated for actions carried out in support of legitimate struggles for self-determination or for opposing the illegal policies of the United States government and/or it’s political divisions”. The denial refutes this claim and also doesn’t subject them to United Nation resolutions. The system had to turn righteous justice fighters into criminals to protect its own validity and sanctity. As Irish Republican prisoners knew- “The Criminalization of political enemies and the denial of their existence as political enemies is an essential element of a consciously waged psychological war of isolation and destruction”.

Under the rug of Americas most notorious abuses and scandals exist men and women who have received the most horrendous injustices and violations all because they were brave enough to seek and stand up for “the American Dream”. Some of these men and women have been held in solitary confinement for 20, 25, 30 years (like the Angola 3 in Louisiana). More than a hundred men and women are currently imprisoned by the United States government for participating in movements for justice and liberation. They are dedicated American Indian Movement activists like Leonard Peltier, Puerto Rican independentista Oscar Lopez Rivera, former Black Panther Mumia Abu Jamal and Sundiata Acoli and radical ecological activist -and member of the Yaqui Nation- Rod Coronado. There’s activist like MOVE 9 who have been wrongly incarcerated since 1985 for protecting their home from an unlawful police attack.

As Dan Berger, in his “Building a Political Prisoner Support Movement” article, wrote-

Political prisoners, if largely unacknowledged, are at the crux of debates over incarceration. Their presence testifies to the ongoing legacy of social problems, which in itself is central to the cycle of crime and punishment. As the anti-prison movement continues to grow in strength and stature, the question of political prisoners demands attention because these movement veterans remain part of the current endeavors for social justice. Their lengthy incarceration, including many with life sentences, speaks to the vengeful mindset governing imprisonment in the U.S. Parole is almost uniformly impossible even after decades of incarceration and despite their having met all the requirements for release”.

When looking at what the government may call “terrorist activities”, compare arrest, conviction and sentence rates of these people of color versus members of terrorist groups like the Ku Klux Klan, White Knights, Aryan Brotherhood, neo-Nazi members. Or versus crimes committed under Jim Crow or under Cointelpro. There’s a vast disparity.

Some of these political prisoners have died in prison due to illness because the system refused to release them. Albert Washington and Merle Africa are two. Others suffer from cancer illness- like Russell Shoatz, diabetic black outs like Robert Seth Hayes. Some were held until there was nothing left but death, then released- like Marilyn Buck. Then there are the old witch hunts to track down activist from the old days to put them where these men and women are- like the $2 million bounty on the head of Assata Shakur (aka Joanne Chesimard).

These are not movies or reality shows. These are events taking place right here in American today. These are political witch hunts that take place right under your noses. It’s happened even recently with Occupy arrest. How soon did those stories disappear? The above stories have been going on for 25, 30 years but to the average citizen they are unknown. These men and women have been sucked in by the Prison Industrial Complex and their lives and struggles are testaments to what goes wrong with the Criminal Justice and Penal Systems when they go unchecked.

These men and women, too, are continuously punished for their refusal to relinquish their political prisoner proclamation and their political or historical views. It was the same for the Irish republicans in “Language, Resistance and Revival”: “Our refusal to submit to criminality became more than simply an internal jail issue. The battle against it became a crucial factor in the overall struggle for self-determination”.

As author Fran Buntman expounded- “Incarceration was transformed into a new arena for political resistance that undermined state power by influencing and politicizing events and activities outside the prison walls”. And this, moreso than anything, is what imperialist, colonist, corporate criminals seek to crush the most because as Long Kesh prisoner Laurence McKeown understood- “if we stand together, no one can defeat us, whether it’s in jail or the outside”.


It’s these tactics that render men and women tainted when they return to society. While there are men and women that do return to society and function properly and become productive, the large quantities that don’t, go uncared for- until one backslides, then they are further condemned. However, the conditions that led them to be that way are not disclosed. As Wilde observed:

The released prisoner is abandoned at the very moment when its society’s highest duty towards him begins”.

Even politicians have acknowledged these effects. While discussing solitary confinement in 2012 infront of the Texas Senate Committee (after it was told 878 inmates were released to home from Ad Seg without any treatment program), Senator Whitemire stated- refuting claims from the TDC Director that these men couldn’t be released to General Population before release-“but you can let them discharge onto the street when they finish their sentence, straight from spending every day for 15 years locked up alone in a cell? Why not give them some life-skills or some faith-based programs or something that can prepare them for then they get out, rather than just turning them loose?”

In fact, Vikrant Reddy of the Texas Public Policy Foundation told the committee about a program in Mississippi launched in 2003 which reduced the state’s number of Ad Seg offenders from 1,000 to around 150. Notably, reducing the number of Ad Seg prisoners by 85% not only didn’t increase prison violence, in fact, the number of incident for use of force plummeted. Monthly statistics showed an almost 70% drop in serious incidents, both prisoner-on-prisoner and prisoner-on-staff. Not to mention it saved the state more than $5 million annually. While states like Illinois is trying to shut down some of its most notorious supermax facilities (Tamms Correctional Center), Texas continues to seek utilizing Ad Seg and thus far has failed to introduce any kind of “step down” process that is beneficial to the inmates (other than their gang renouncement program which is based on “debriefing” [ie-giving information on their activity and group membership] which only puts the inmates more in harms way)

“The U.N. Commission on Crime Prevention and Criminal Justice held its 22nd session in late April 2013. A Significant item on the Commission’s agenda was the development of revised Standard Minimum Rules for the Treatment of Prisoners (SMRs). While NGOs continue to push for several key reforms- modifying solitary confinement policies and procedures being chief among them- the U.S delegation continues to frustrate their efforts, leaving the impression that while the U.S. condemns human rights abuses on other countries, it refuses to look at abuses in its own prison system”. (As reported in the Prison Legal news May 2013 edition)

The lives of these men are not cared about- only the furtherance of the System’s goals and objectives at any and all cost.

Prison life, as Wilde added, “with its endless privations and restrictions makes one rebellious”. To come out abused, dejected and rejected, what comes of society? Other than a revolving door for the big corporations that stand behind the Prison Industrial Complex, what overall good is coming from this process?


The Prison Industrial Complex is like a predator in the sea with long tentacles. It lies in wait as prey swims back and forth infront of it. Some it grabs, some it doesn’t. But, as long as the sea predator exist, it is always able to grab something new.

Penology is one of the basic five P’s now used to systematically control the unconscious masses (that prey):

  1. Philosophy

  2. Psychology

  3. Politics

  4. Propaganda

  5. Penology

The indifference and stagnation of members in society feeds directly into the problem. For example, “as unemployment on the outside increases, crime and the concomitant incarceration increases”, as Paul Wright (editor of Prison Legal News) noted. He continued- “It may be that before too long, people can only find menial labor intensive production jobs in prison or third world countries where people labor under similar conditions. The factory with fences meets the prison without walls”.

The Prison Communication Activism Research and Education study revealed that “an estimated 4.7 million Americans have lost the right to vote because laws that disenfranchise the imprisoned or the formerly imprisoned. In 48 states prisoners cannot vote; 36 states bar those on parole or probation from voting”. Also- “since 1995 the annual rate of growth in the number of women in prisons or jails has averaged 5 percent, considerably higher than the 3.3 percent yearly average increase for men”.

As Sasha Abramsky (author of “Crime As America’s Pop Culture”) explained:

We have come to regard arrest, prosecution, and unemployment as fundamental props of our mass culture, thus elevating one of the more unpleasant duties and obligations of the civil society- the prosecution and punishment of those who flout its laws- into a cultural commodity that may, ultimately, come to define what kind of nation, what kind of people, we become”.

We have heard many times that the true measure of a civilization can be found by entering its prisons. This, more than a church or a school, shows the heart of the society and its leaders. From what has been revealed in this writing, what is the heart of America saying?

“A Radical Perspective on Crime” author Jeffrey H. Reiman put it in the most noblest of terms:

To look only at individual responsibility is to look away from social responsibility. To look only at individual criminality is to close one’s eyes to social injustice and to close one’s ears to the question of whether our social institutes have exploited or violated the individual. Justice is a two-way street, but Criminal Justice is a one-way street. Individuals owe obligation to their fellow citizens, because their fellow citizens owe obligations to them. Criminal Justice focuses on the first and looks away from the second. Thus, by focusing on individual responsibility for crime, the Criminal Justice System literally acquits the existing social order of any charge of injustice”.


Justice and power must eventually connect, so that whatever is just may become powerful, and whatever is powerful may become just. And the people, when they become aware of their power, will have every right to take possession of what is rightfully theirs. Not simply meaning materialistic objects, but the most basic of things: integrity, dignity, equality, justice!

By looking at prison issues we look at the motive of the nation. We often get caught up in the propaganda (#4 on the 5p’s) and point fingers to the atrocities in places like China, North Korea, Russia, the Middle East- but fail to acknowledge what’s going on right up under our noses or in our own backyard.

The masses’ inaction can only be computed as approval, because as Paulo Freire noted:

Washing one’s hands of the conflict between the powerful and the powerless means to side with the powerful, not to be neutral”.

Everything that has been described as the “99%” in social terms is susceptible to the tentacles of the Prison Industrial Complex. The Prison Industrial Complex is a virus amongst the bloodstream of America. It is not beyond inoculation. And before this virus completely annihilates that which we call society, I would urge you to move in the spirit of American lawyer Clarence Darrow-

As long as the world shall last there will be wrong, and if no man objected and no man rebelled, those wrongs would last forever”.

Take back your world before you are ultimately taken aback by your world!

Kenneth FOSTER

#1451768 Robertson Unit,
12071 FM 3522
Abilene, TX 79601

An analysis for understanding why Severance and Law of Party Bills have not been passed

On August 30, 2007 the death sentence of Kenneth Foster was commuted to life (Capital Life, under Texas law, a person must serve 40 years before being eligible to see parole).

On May 6, 1997, Foster was sentenced to death for his role in the 1996 capital murder of Michael Lahood Jr. Foster sought to have his death sentence commuted to a life sentence arguing that he did not shoot the victim, nor conspired to rob, but merely drove the car in which the actual killer was riding. In addition, Foster was tried along side the actual killer, Mauriceo Brown, and the jury that convicted Foster also considered punishment for both him and his co-defendant in the same proceeding.

After local political support, and an International outcry, the Board of Pardons and Paroles voted 6-1 to recommend commutation (a recommendation that the Governor does not have to accept). The Governor signed the commutation and stated:

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.” (emphasis added)

The latter part of that statement is what would spark the Law of Party/Severance bill. But, as you can see, Governor Perry’s words were only geared towards the Severance issue- not the Law of Parties.

In 2009 Rep. Terri Hodge (D- Dallas) and Senator Chuey Hinojosa (D-McAllen) decided to take on the 2 laws. House bill 2267 was created. The bill would eliminate the death penalty as a sentencing option under the controversial Texas Law of Parties. It would also require separate trials of co-defendants in capital cases.

Initially the bill seemed to be an instance success. On May 15, 2009 the Texas House of Representatives passed HB2267. However, as quickly as it caught wind it met violent opposition. The next step for the bill was the Senate, but Governor Rick Perry threatened to veto the bill if it passed the Senate with a provision to end the death penalty in Law of Party cases.

The bottom line is that Texas does not want to get rid of death penalty options for those that do not kill.

As of now the Texas Law of Parties (7.02 of the Texas Penal Code) reads: a person that does not kill may be eligible for the death penalty if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense of (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense and (4) (b) if, in the attempt to carry out a conspiracy to commit a felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in the furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” (emphasis added)

Upon appearance this law may seem fair for a person who does not personally kill but consciously encourages or aids in the crime. That gives a culpable mental state.

This is why the State of Texas does not want to get rid of the Law of Parties. However, the problems are arising as you travel down further on the law. Once you get to section (b) of 7.02 things begin to change slightly. You no longer have to have intent and instead of being held responsible for what you engaged in, you are held responsible for what you should have “anticipated” as a result of that conspiracy. This bottom part seems to contradict the top part. It simultaneously says you must have intent, but then goes on to say “though having no intent”.

This is why the law of parties is being challenged. The easy cop-out from the State would be that Prosecutors will use proper judgment on what Law of Party cases they seek the death penalty. But, time and time again it has been shown that under public or political pressure prosecutors become over zealous and pursue death at all cost even when not deserved. Cases like that of Joseph Nichols (who has been executed) comes to mind, and cases that are still pending like Jeff Wood and Rudy Medrano.

The only way the Law of Parties will be applied properly is to adjust the way it is worded. Thus far this has not been done and this ultimately led to why the bill never got out of the Senate.

Facing the veto politicians sought to amend the bill. During the legislative tango breaking news came from Clint Magee (chief of staff for Rep Terri Hodge):

I wanted to let you know we had a meeting with Governor Perry yesterday concerning our bill, HB2267 (Law of parties). We’ve drafted an amendment that Senator Hinojosa will attempt to add on to the bill in the Senate. The bill is on the Senate intent calendar, meaning it’s eligible to be heard, but it’s up to the Lt. Governor to call the bill up. Basically, the amendment is doing the following-

The amendment will ensure that for a person found guilty in a capital felony only as a party under section 7.02 (b), a jury shall take into consideration all the evidence of the case, specifically to determine if the defendant could reasonably forsee that their actions might result in the death of another person during the course of the crime.

The State must prove beyond a reasonable doubt that the defendant is guilty under 7.02 (b) and the jury must submit a verdict of “yes” or “no” on the issue.

The court shall charge the jury that during their deliberation, they need not agree on what particular evidence supports an affirmative finding, and they shall consider mitigating evidence concerning the defendant’s moral blameworthiness.

Should the jury agree and submit a “yes” verdict where 10 or more jurors agree, the defendant shall be sentenced to death.

However, should the jury submit a “no” verdict where they agree unanimously, the defendant shall be sentenced to life imprisonment without parole.

After speaking with defense attorney’s, if the jury cannot reach an agreement- if there is a “hung” jury- then the defendant would be sentenced to life imprisonment without parole.

So while the amendment would not completely remove the death penalty as a punishment option for a defendant found guilty only as a party it would give 2 out of 3 chances of avoiding the death penalty for a person who did not kill.”

Apparently that was still too much. The bill was never called up and it died in the Senate. There is no public explanation of why the bill was not called. It would be theory to say there were too many issues already on the plate for the Senate. And it would be theory to say the following, though more facts lean towards it- while HB2267 had a lot of support it simply contained something the System did not want to change- no death penalty for people who did not kill. They didn’t want to change it, so they never addressed it.

This is what should have happened when the threat for veto came.

When the resistance to the bill came it should have been accepted. It was known that the issue that was up for addressing was SEVERANCE. Afterall, this is specifically what Perry said should be examined by the legislature. The bill should have been written to address severance ONLY and the law of parties should have been put on the shelf to be fought for on another day. Step by step. One thing at a time, because that’s the only way to make progress on such issues. It is not feasible to think you can take such mighty leaps on death penalty issues in Texas. If the bill had simply been reworded to automatically Sever trials in capital trials that bill would have passed and one more brick in the wall of capital punishment would be taken out. Brick by brick you pick the wall apart. Now, today, we still have the same two bricks in the wall that need to be plucked out. Instead of being one ahead we are two behind. By the time the severance bill would be written correctly (in 2011 in HB 2200 ) it would be too late.

In 2010 Rep. Terri Hodge was charged for tax evasion.

As a result she took a plea and was sentenced to 1 year in Federal prison. Therefore, the one who spearhead the fight on these 2 issues was no longer around to help push the bill. Supporters of Foster- who were still invested in fighting these 2 issues – scrambled to gather help to push the bill again in 2011. This time it was understood that the Law of Parties and Severance issues must be filed separately. Law of Party bills would be submitted by Senator Harold Dutton and at last minute the Severance bill (properly written) was picked up by Senator Boris Miles. However, the topic had grown cold and the Severance bill never made it out of the 1st stage of legislature.

Foster’s hope rest with getting a Severance bill passed. This issue is the base for his conviction and punishment. If Foster had never been tried with Mauriceo Brown his future may have been different and perhaps he would be out of prison now (see the case of Peter Dowdle who was a party to the capital murder case of Jonathan Moore [whom shot and killed a police officer in the midst of burglarizing a home with Dowdle and fellow co-defendant Paul Cameron]). Each defendant received their own trial. Moore was found guilty and received death, Cameron received life and Dowdle (the driver) made out with a 25 year sentence and was released from TDC on June 4, 2009. The cases are almost identical except Dowdell knew he was going to the house to rob it. Foster did not. SO, why is Dowdell free and Foster serving time until 2036? If it’s not race (all 3 of the above defendants are white) nor behind the scene politics, then it must be the law that allowed Foster to be tried next to Mauriceo Brown that made the difference.

A Severance Bill must be passed to ensure these types of injustices do not happen again in the future.

Returning to the Law of Parties. The reality is that the Law of Parties will not be abolished in Texas. Nor will the death penalty for people that do not directly kill. However, what activist and politicians must do is strategically word the Law of Parties where it will give a defendant a fair chance in the face of over zealous prosecution. Prosecutors are going to continue to misapply this law (as they continuously show). Therefore, until the make-up of Texas government changes (Governor, CCA, Senate etc.) they must seek to get this law worded properly.

As of now issues 1-3 (as cited earlier) of the Law of Parties carry a sense of fairness. It convicts a person by their own actions- and that is when one “solicits, encourages, directs, aids or attempts to aid.”

It’s 7.02 (b) that is allowing prosecutors to wrongly send men to death row and allows jurors to be confused on what the standard of law is. As long as 7.02 (b) is worded in that fashion the System will continue to hand down wrongful death sentences.

All efforts need to be focused on adjusting (b). We have formulated a breakdown of the statue concerning the law of parties and its surrounding stipulations. Any person (lawyer, politician, public citizen) must understand all of the ramifications surrounding this statue if it is to be successful. The following is a comprehensive analysis of the statues and what needs to be done.

Proposed Legislation for Texas Penal Code 7.02(b)

According to 1.07 (a) (22) of the Texas Penal Code, the requisite elements of a criminal offense are:

  1. The forbidden conduct (the defined offense in the Penal Code);

  2. Any required result (the actus reus); and

  3. The required culpability (the mens rea).

According to 6.02 (d) of the Penal Code the requisite mens rea for any criminal offense are as follows:

  1. Intentionally;

  2. Knowingly;

  3. Recklessly; and

  4. Criminal Negligence.

When charging a criminal defendant with engaging in a criminal conspiracy, proving the mens rea of the conspiracy is (and should be in the State’s burden of proof) absolutely intrinsic of the charge itself, because according too Article 15.02 of the Penal Code:

A person commits criminal conspiracy if, with intent that a felony be committed:

  1. The person agrees with one or more persons that they, or one or more of them, engage in conduct that would constitute the offense [see Turner v. State, 720 SW 2d 161, 164 (Tex. App.- San Antonio, 1986, pet. Ref.) (person must know that the offense will be committed and agree in advance to aid in its commission)]; and/or

  2. The person, or one or more of the persons, performs an overt act in pursuance of the agreement.

According to 6.03(b) of the Penal Code:

“A person acts knowingly, or with knowledge, with respect to the nature of the person’s conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.”

It is by the Penal Code’s own defined requisite culpable mental states that 7.02(b) is fundamentally flawed and unjust, and thus should be amended.

The language of the statue reads:

“If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are responsible for the felony actually committed, although having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out the conspiracy.”

This statue is generally a good law, and a deterrent for conspiring to commit felony offenses, however, the quintessential flaw to this law is the “should have been anticipated” part.

If the act of a co-conspirator occurs as a result of an independent pulse and not as a part of the conspiracy, or the act was not an action that “should” have been anticipated as a result of carrying out the conspiracy (i.e., the defendant was not put on notice [i.e., was not aware, did not, or could not, have knowingly been aware of the co-conspirator’s independent act]), the other conspirators are not liable. See Hooper v. State, 170 SW 3d 736 (Tex. App.- Waco 2005, no pet. Hist.) (while defendant intended to assist codefendant in robbery by driving getaway car, there was insufficient evidence that he intended to assist codefendant to shoot at pursuing police officer.)

Although the State’s proof may fail if the jury finds that the actions of a co-conspirator were an independent pulse, this doctrine has not been enacted in the statue, which overrides case law, and it should be. In our American Criminal Justice System an offense is not proven unless every elements of the offense is proven beyond a reasonable doubt. In a conspiracy liability context, the essential elements are the mens rea. This is manifested in Hooper, supra, where there was no evidence to show that Hooper had knowledge that his co-defendant would shoot at a peace officer, effectively turning a 2nd degree felony into a Capital one. It is akin to saying- for not wearing your seatbelt, you should have known a car would smash you from the rear and break your neck or toss you from the vehicle.

Further, the burden of proof in criminal offenses is on the State. Why shouldn’t the evidence be mandated to show, as was the case in Hooper, that the defendant reasonably had knowledge that the offense would occur? Especially if a criminal offense must be proven beyond a reasonable doubt. Too many times have Texas defendants been convicted on abstract clairvoyance due to the “should have been anticipated” language of 7.02(b). This, as Hooper implicitly recognizes, is a flaw.

Therefore, because criminal elements of an offense are to be proven beyond a reasonable doubt, and because the kernel of a conspiracy, and any act of a conspiracy, is the defendant’s knowledge, 7.02(b) should be amended as follows:

“If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, although having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one the conspirators knowingly anticipated as a result of carrying out the conspiracy.”

For the purpose of this section, a conspirator acts knowingly, with respect to another felony committed by one of the conspirator’s, when the conspirators are aware that the conduct is reasonably certain to cause the result.

For the average eye it may seem that not much has changed. But, it has. By lifting this statue to “knowingly anticipated” from “should have anticipated” you raise (and rightfully so) the burden on the state. Prosecutors and Judges must be forced to follow the statues set forth to the by the Texas Penal Code (which, thus far, so many have not). When a defendant is judged on his actions, then thus held to that awareness, it creates a fair prosecution. People should not be tried and convicted based on an assumption or psychic ability. What “should have been anticipated” is too easily manipulated. Let’s raise this standard of proof.

The legislature is now in session. Let’s contact the proper officials and accomplish this much needed goal.

Two bills are currently pending:

1) HB 261 filed by Representative Boris Miles concerning the Severance law. This bill is well written and should be greatly supported. Please write to Senate members about supporting this law.

2) HB 319 filed by Representative Harold Dutton. This bill needs to be greatly corrected (which is what this analysis addresses). Please contact the Senator and ask him to research the facts behind this analysis and look into amending his bill. Also, encourage him to launch a study about law of party cases in Texas. Perhaps a Texas law school would be interested in spearheading this.

We thank you ahead of time for your efforts. Please stay in touch with us and let us know about your work and responses.