Category Archives: Death Row

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.


The Chase

I was asked what my current state of mind/being is like as I’m now in position to receive a date of execution (which we know is booming ahead). The following is what I was able to express – and while I was unable to give this description in “normal” terms (but what is actually “normal” about this situation?) this was the best I could do.


Sometimes what we go through is hard to explain; other times unexplainable; and then at times we explain things that only the universe can understand.

Imagine if you will…….


The Serengeti. The rawest scene of what is wild and primal. The sun is slowly setting. It exudes a dark blood red glow that heats everything within its reach. Everything perspires; even the trees (so it seems). The surroundings are filled by all sorts of creatures: the silent, the noise makers, the hunters, the prey. Here, survival is the mode of everyday. This is a place where life and death dance across the plains. They are interchangeable joys and pains; smiles and tears; answers and mysteries.


I am amongst a pride of lions. I am in the practice of watching those that always watch me. I’m the feared yet admired. I’m majestic yet cursed. I’m a beast yet beautiful. I am nevertheless a manifestation of what is divine, and I find myself hungry for survival in this circle of life and death.


Without notice and like a flash across the horizon I have caught a glimpse of my object of desire. My eyes lock like radar….. I’m lust and need; intensity and determination; all the while knowing that I too am in someone’s sight. But my eyes cannot be moved from that which may alleviate me from my snares.


Silence descends. In concentration I breathe through my skin only and think through my pupils. I’m motionless, but very aware. My pride is one accord; communicating only through their senses: seeing the stakes, smelling the excitement, hearing the heartbeats of intensity, feeling the heat; tasting the opportunity.


Hunger has set deep within me. In instinct I have gone from crouch to stretch. My claws stimulated have extended and my body is tense. Each muscle is a calculated contraction being protruded in a way to win my cause. There’s no sound – only wind and heat rays bouncing from body to body. The environment understands what is at hand.


But, death stirs so delicately and without awareness and the trees hold secrets from me as the 30.06 rifle takes scope of me. I recognize there have been no promises and that in the end I am on my own.


I slide lightly over the ground – the rocks and thorns. There has been no real nourishment for sometime. The days have been cruel and the nights have been merciless. Life has almost become something to dread. Death could be a sweet invitation.


And so I take to movement – flowing synchronized with golden blades of grass that swirl me into a frame of still thunder. I’m possessed with the outcome of this chase as it is now win or lose – there will be no draw.


Recognizing that nothing in life must be easy my target stirs. Eludes me. The object of my desire dances in front of my face teasing me with the cruelest tantalization. The ache in me is like the low hum of a drum and I am now in passionate pursuit of my target.


And from that mysterious silence once again, behind the leaves of the tree, the 200 pounds of iron flesh inches towards its target taking in the human smell with its infra-red forked tongue. Like the death that watches me, death has no biases and even watches the hunter of hunters.


Moving low and in stealth I have found my 2nd gear, I know everything from this point counts: every step, every turn, every breath. The event now exposed to the environment turns the silence into whispers, whispers into chatter and the chatter spreads to pandemonium.


Having nothing else to lose but pain I fire from my cover like an arrow from the bow; and like the most gentle gesture the trigger is squeezed; and from the branch the 200 pounds of iron flesh strikes forth like lightning…


The dust rises…. and death descends. Only god knows what shall be when the dust settles.


The anticipation had grown. There was a sense of tension, despair and anger in the air. The word was – it’d be a fight to the end! As I stood in the death row recreation day room watching the dreaded death watch cell officers began to take some of the inmates in the day room back to their cell. We all knew what was approaching and because the situation was escalating my request to stay in the day room remained unobjected. I stood close to the caged window watching the correctional officers approach the deathwatch cell. I could hear them talking through a broke out window – “Jennings, are you coming out?” Their reaction of walking away answered that. As they left, I peered into the cell trying to focus my sights through the covered cell. The cell had been enclosed by a piece of metal grill. This was installed as a protection for officers preventing a desperate or purposeful act of violence from the prisoner awaiting his trip to Huntsville for execution. As I got my sights I saw the young warrior. He was wrapped from head to toe in cloth-protection for the upcoming war. All jokes aside he looked like an Arabian in the desert or even a ninja. Within a few minutes a team of about 8 officers filed in suited in riot gear. As they lines up next to the death watch cell the ranking officer pulled in front of the cell and asked once again, “Jennings, are you coming out?” With the continued stance of resistance the war began. A long stream of pepper gas was sprayed into the cell. This gas is atrocious and creates extensive burning of the eyes, infringes in on breathing, irritates the skin and induces coughing and gagging and has even caused death.


As I stood watching this my blood began to boil and my heart raced with fury; fury of being helpless and knowing… this could be me! The young warrior began to pop a blanket he had in his hands trying to push the gas back out the cell, but the metal grill only acted as a shield incubating the gas in the cell. As the brother remained resistant to these men attempting to take him to a state sanctioned murder another long stream of this vicious gas was released into the cell. The popping of the blanket continued. As I looked back to the few others that were in the day room with me I could only shake my head and say,” this is messed up!” In the process of looking towards the other persons in the day room something caught my eyes that held my attention in a very awing way. I saw nothing but pure hopelessness in their eyes, it was very disturbing and what was even more disturbing was… they were just sitting there. Internally this enraged me because I thought to myself this is a man on death row, whether we know him personally or not (which I didn’t) we can’t sit here and act like this is nothing. At the exact moment I turned around to face that window and I yelled, “ FIGHT SOULJA! FIGHT THESE PIGS!” The hopelessness I saw in these people’s eyes turned into vigilance in my voice and as I witnessed this man standing alone in his excruciating fight I refused to let him stand alone, I refused to allow him to see a fellow brother on death row, in the same boat as him, sit there as if nothing was happening. By then the gas began to seep through a couple of broken windows and I began to cough from it. I couldn’t help but to say out loud, “damn this stuff is strong.” I could only imagine what the man in the cell was going through. Again, the officers let a spray into the cell and this time Jennings began to gag and choke very loudly. I continued my yelling, “STAND STRONG SOULJA! STAND STRONG!” The ranking officer told his squad, “Get ready!” He then yelled to the picked control officer, “Get ready to roll the door!” Then, at the end of a count down he yelled out, ”Roll it, Roll it,” and like a set of bloodhounds out the gate the riot team stormed the small cell and the fight began. You could hear the tustling and Jennings (quite an in shape young man) was putting up a most powerful fight. My whole body exploded into a combination of cusses and threats to the officers as I was screaming at the top of my lungs, “FIGHT SOULJA! THAT’S YOUR LIFE IN THERE!” I repeated this several times. The ranking officers observing this struggle could no longer ignore me and looked back to take note of who this raging prisoner was.


It was a vicious struggle and it took a few minutes to subdue and cuff Jennings.

My insides were hurt as I watched them bring him out. I can only say that as my pride and anger would not let a tear release, my insides were flooding with them. I couldn’t think of any words worthy to be given to this man I only let out, “ God’s going to bless you soulja. God’s going to bless you.” Out of pure vindictiveness one of the officers looked over to me and gave me the “cut throat” sign running his thumb across his neck. It was a reminder to me of this war, a sign that there is no mercy where we are concerned.

Yes, I did know it was through and that Jennings was at the end, but the war has just begun.


This day I speak of was November 16th 1999. The man was Desmond “Des” Jennings; a young black male that went down the wrong path that lead him to death row. While I didn’t know Des, many brothers I knew did and respected him and gave him much credit for the self- educated plight he endured. The awaking to his roots as an African man had given him the knowledge and strength to stand in his time of peril.  It gave him the knowledge to not fear death, to love his life and to take his right to live into his own hands by fighting for it. And while this is not a time for me to politic with those who preach an eye for an eye this society is wrong and a full blown hypocrit for killing its citizens when it propagates do not kill.


Desmond Jennings not only made history that day in the struggle from death row as being one of the very few in death rows existence to physically fight to the end, but he made a statement to society and to those of us that claim to be strugglers and conscious men. As we sit here in the midst of death row striving for betterment in life and seek outside help for our cases, how, when and if the time approaches, can we not stand up and fight for our lives? This statement has nothing to do with race, colour or creed, but with the common bond that ties all of you here into the same boat. We’re all condemned to be murdered by the state of Texas. This in itself makes none of us (white/black, innocent/guilty) better than the next. As African men though we look to our ancestors history as freedom fighters and tribal warriors and the call for us to remain as such is embed in our souls, period!


It has become my belief that any man physically capable should fight to the end. I say this for several reasons. For those of us that stress the death penalty is wrong, we must uphold that belief through every ounce of our being; mentally, spiritually and physically. We do so mentally through our writings, spiritually through our self-education and growth and must do so physically. I’ve known many young men that professed to be fervent strugglers walk to their execution. What type of statement does this make? It says hey, this is ok. This is fine to be happening. Some of these persons have accepted last meals! What type of statement does this make? It says – I now eat from my enemies hand. The same system that kept me confined and mentally tortured awaiting murder now wants to give me a feast. How sadistic is that?


We have allowed a sense of acceptance of this inhumane process to go on. We have allowed a visual of acceptance that our lives are not worth anything. Were to blame for this. As I have discussed my stance not only with fellow comrades, but my family as well, I have declared that I will fight to the end. I have also declared that others should do the same. We have to realize that a statement MUST be made to society that this is NOT ok and we do not accept it. If I reach out for help from compassionate and human members of society I feel it’s the ultimate sacrifice for me to show I meant my life was worth something. I will not dignify my captors, oppressors and murderers by eating food from them; a meal that at no other time would they offer me. Their bon voyage banquet will NOT be accepted here. We must get this societies attention.


The day after Desmonds fight a Sgt. that was present spotted me in the day room and called me to him. He told me if I ever did that again I’d find myself in solitary (it would be written as “creating a disturbance”). He said he was not “threating” me, but was just telling me. I told him “I knew that yesterday;” and walked off. His point was  – don’t ever speak up for yourself or another inmate; in fact your actions may ignite others. MY point is – at that point 11/16/99, I decided to fight with my comrades the best way I could and would do the same for myself and the cause. I will follow in the path (if my time comes) of vigilant brothers like Shaka Sankofa, Ponchai “Kamau” Wilkerson and Emmerson “Young Lion” Rudd.


I will not accept the victim’s role. For me to submit myself to a victim’s role is to submit and subdue my rage and my rage is the fuel I use in the fight for justice and equality.  I will not submit my rage for a consent of murder on me.

Following this writing piece you will find 2 unique poems that capture my intense feelings towards this matter. One is written in an eccentric fashion full of historical and conscious symbolism and the other is a bit simpler. Two tips of the same flame. In the simpler one (which this writing is named after) I state:


We’ve got to rewrite history

Showing the world we went to peace unpeacefully.

Would be a contradiction

If life wasn’t so precious


While people say it’s no use to fight, their going to strap you in and kill you regardless, I say the are wrong that it’s “no use.” This fight has nothing to do with fearing death or not being at peace, infact the 4 men I’ve named we’re spiritually and mentally intune, but it’s the point it makes. We must challenge the thinking process of the public; which the majority of them think the death penalty is right.


These are actions that show them a role is being played by them just as much as the officers who beat and cuff us, to the one who presses the lethal injection button. As they approve it they approve what comes from it; no different than approving a war where bombs get dropped and masses of innocent civilians are killed. We have to rewrite this twisted history. We cannot be contradictions of ourselves by not showing life is precious. Years ago in places like Europe executions were carried out publicly like social gatherings. Whose to say that the building up of that sick and vile regimen is not what has led them to now be the leading advocates to abolish the death penalty? Perhaps this is now why this sick method is carried out behind closed doors. If this process is so just and the government is so proud of it, why hide it? I say because the horrors of it will enrage people and connect to that beautiful compassion WE ALL have in us towards one another; that which they don’t want you to surge forth for it would extinguish their dictatorship over our every action, thought and well being. Point being, we here must surface these horrors once again so the people will know that monster still lives in our society, but now has a painted face.

While we may gain no physical reward, remember this, the only way to be free is to struggle and dedicate to a cause and fight without fear and through our ability to justify our cause we have broken every chain of oppression placed upon us. The message will be heard, the message MUST be heard, so how could we deny – The Time is NOW!


The death row walk is undoubtly one of extreme complexities. The struggles with life, torture, despair, hope, death etc. are ones that can be put in no simple words. Each of us as unique beings will deal with these things in different ways and because of our unique essences and beliefs there’s just no way that another man can instruct the other in exactly how to walk their path. However, it is my hopes that as ones who face a common fate, and go through common things, we can listen to each others experiences, especially when they may lead to the greater good.


I came to the question – do we humanize the death penalty? Have we sat by so thoroughly inactive that we inadvertently promoted this process? Over 300 men have walked to their murders – the majority having elaborate death feast (that which probably won’t even digest) before their executions. I asked myself, what message does this send to society? The conclusion I came to was; I’m okay with this.


This statement creates controversy as many feel their manhood is being questioned. Well, it is not. What is being questioned is our wide range vision towards this capital punishment process. It is my wholehearted opinion that no death row inmate should walk to their execution. I passionately express that to those inmates who condemn the death penalty (the reality is that all death row inmates do not – be that to your surprise), and get out there and launch campaigns to save their lives. If we can do that in the outside world, we can do that on the inside. I believe it’s our duty to make this statement – to burn this into the psyches of our captors, other inmates, the system and the media. As one says “the death penalty is wrong”, we should stand on that until the end.


I know this is a sensitive time (facing a date) and one may not be willing to sacrifice like Brother Ford. Due to his protest the administration took his property, showers, recreation, and suspended his visits. They didn’t take his spirit or dignity though, and for those of us standing with him, we are going through the same restrictions, yet we are not broken either. Tony had prepared for all this saying his goodbyes a month ahead of time and dedicated his last month to the struggle. What courage and dedication! Many won’t do this, but that’s not a total lost. When those people come to walk you to that death chamber, just refuse to participate. What are they going to do? Write you a case? You don’t have to physically fight. If media comes to see you, tell them what you will do. Let the world know that “I’m not participating in my own murder!” What do all of you think society would feel seeing hundreds of men and women doing this? I think it would be very provoking. It’s almost 3,600 death row inmates nationwide, but how often does this happen?


Some will try to manipulate you and say “a real man would walk head high”. This is nothing to be proud of. It’s an abomination. Some will say “what’s the use, you’re going to die anyway”. The purpose is to expose this to the world. Since 1976, there has been over 1,000 executions. There could have been hundreds of statements saying “I’m not ok with this”, and that has nothing to do with being at peace or remorseful – that is if you’re guilty or wrong for your crime. One protest does not contradict the other.

In my eyes, I see this as the final statement against this death penalty. If you’re a Christian and believe in non-violence, lay it down and pray out loud about the blood on these guards’ hands. If you’re a Buddhist, speak about their Karma. If you’re a Muslim, remember your code of righteous Jihad. All of the Prophets were warriors in their own way.


Our lives have been changed by this process. Our families crushed. We need to help end this process so that the cycle of pain cease. This is one way we can play a role. This is one way we can allow the barbaric nature of the system to be seen. I appeal to your conscience and principles. As politicians seek to further oppress us we have to step it up a notch to end this death penalty. I do believe that the above movement is one long overdue. I hope that you’ll deeply consider it.


In Spirit, Strength and Struggle,

Kenneth Haramia Foster #999232


There’s an issue that I feel needs to be urgently addressed in regards to the angles certain activists take in fighting the death penalty. With this comes a certain understanding and acceptance of reality. If one can’t face the reality of a situation, how can a proper solution be found? Stokely Carmichael pointed it out properly when he said:

“In order to get the right answers, one must pose the right questions. In order to find effective solutions, one must formulate the problem correctly. One must start from premises rooted in truth and reality rather than myth.”


The above is in reference to a conversation I had with an activist whom is part of a well-known anti-death penalty group here in Texas. As we discussed different tactics to fight the death penalty, he pointed out that we must make the death penalty a morality issue with these politicians. I was quite shocked at that reasoning and pointed out to him why. How can we make the death penalty an issue of morality to these politicians when their “morals” tell them that the death penalty is an appropriate and acceptable thing? Not only is the death penalty “morally” acceptable to many of these politicians, it’s a part of their religious beliefs as well. In a heartbeat, many of these pseudo-Christians will quote the Biblical scriptures of eye for an eye to you. That is truly something of a deeper decay that would have to be raised at another time though. I know that I don’t have to tell any of you how eye for an eye is contradictive to what Jesus taught. Plain and simple, any person believing in eye for eye shouldn’t even call themselves a Christ-ian. The point is, we’re dealing with a society that has completely warped and polluted a righteous ideology/religion. In the face of love and forgiveness, politicians still act out in just the opposite forms of this – hate and vengeance. Therefore, what we’re dealing with is a groups of people with a polluted and twisted mentality. So, trying to teach morals to these people would be like trying to teach sanity to a schizophrenic. The bottom line is we can’t abolish the death penalty thinking we’re going to do so by showing these politicians, through a verbal expression or morality, how wrong it is.


Steven Hawkins (Executive Director of the National Coalition to Abolish the Death Penalty) said:

“The ONLY way the death penalty will be abolished within our lifetime is by an AGGRESSIVE, CONCERTED, broad based grassroots effort that DEMANDS death penalty repeal state by state, legislature by legislature.” (my emphasis added)


And I totally agree! This man didn’t say that we’ll be successful passing out flyers or lighting candles when people are being filled with poison. He said we have to be aggressive (this doesn’t mean violent) and be concerted (which means to plan). He also said that we must DEMAND the death penalty be repealed. This isn’t asking, it isn’t begging, it isn’t compromising. When you demand something that is an URGENT request. It’s a way of telling somebody to do something and accepting nothing less. As these “activist” continue to accept less the death row population becomes less and less.


We have to realize that we’re dealing with a country that only knows how to talk through force. They live by the power of the sword. You gain power over a person in one of two ways: by winning their heart or breaking their spirit. This country follows the latter. To be in tune with this reality is to understand that you cannot overcome an attack by being passive. Texas has no complexes about stating what they are- they are killers and they do it well. We can’t rightfully become killers of politicians in that sense, but we must learn how to “execute” political power.


Martin Luther King Jr. broke it down best and this needs to be a strategy that all anti-death penalty activist live by. He said:

“Morality cannot be legislated, but behavior can be regulated. The law may not change the heart, but it can restrain the heartless. It will take education and religion to change bad internal activities, but legislation and court orders can control the external effects of bad internal attitudes.”


Some people can’t understand spirituality, but they can understand that if you do this or that people will get on your ass! And that’s what we got to get back to. We’ve got to let people know what we’re willing to get all the way down for ours, to show that we’re tired of this wicked laws. When I write poems like “Let’s Start Organizing” and “We don’t need mourners, we need organizers,” I mean that! We as inmates have a responsibility to relay this to those that are in anti-death penalty activism. We have to be constant reminders that this cannot be a passive battle. Holding vigils at executions is like taking spit balls to a gun fight! We’re losing because these politicians aren’t taking this movement seriously. They don’t feel a threat. The threat has to be physically in the streets and economically (like with the Voters Initiative). That’s what they feel. These people don’t feel morality and spirituality. They’re heartless. Only when this soaks in will a difference be made in totality.

In the famous words of attorney 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!”


Many people brush off the terms prisoners use to describe their situation, conditions or the powers that be. These terms are often viewed as colourful or over exaggerated. However, could it be that we’re in denial about what we’re facing, going through and the methods being used against us? I think for any person that lives in this country they can admit that politics is the predominate art in the land; and politics are built on the skill of being persuasive. Therefore, we’re surrounded by people whose goals are to convince, if not fully control, our minds. Point being, you’re going to find some very colourful and exaggerated speaking. It’s up to us to separate the wheat from the chaff and the only way that will be done is when we care enough to study for ourselves to find out what’s going on and not depend on others to think, and do, for us. And it should already be understood that when another thinks for you they will usually think on behalf of their own well-being before yours. We have an environment where there is a large population of poor and I think it goes without saying that the poor is neglected. And when you have a neglected people you have a people who can be easily controlled and contained. This is done by keeping them away from what can empower them – be it resources in the form of food, money, opportunity or education. So, what we have is a section of people on one hand who don’t know what’s going on, thus can’t act, and then on the other hand you have some that know a little bit about what’s going on, but can’t do anything about it because they are disempowered… or at least feel that way. “The more corrupt the state, the more numerous the laws” (so said Tacitus, Roman senator and historian A.D. c.56-115). Does this sound fitting for what we see going on in this country today? This should not dismay us and cause us to throw our hands in the air in defeat. In fact, this should cause us to do the opposite – get aware of what is taking place so that we can counter-attack it. The first is becoming aware, which leads to the topic of this discussion. I’m here to tell you that Capital Punishment is a form of genocide. Some people may say “Whoa! That’s a strong word to use,” but I use it with no hesitation. When people hear the word genocide they may say to themselves that only applies to places like Rwanda. While it’s true that we haven’t seen genocide on those levels it’s not true that we haven’t seen genocide at all. As with all things there is a starting point. America has started and if we don’t put a stop to it conditions like Rwanda may not be so unimaginable for this country. And that’s part of the problem – people allow themselves to become detached from things that affect other parts of the world thinking it has no bearing on their lives. That’s a critical mistake, especially for people who live in America which is a country that makes it their business to meddle in the affairs of other countries. We’re so detached that we are unaware of what’s going on right in front of our faces and most definitively international affairs. Americans have become a very absorbed people and due to such they are absorbing into their own destruction. I’m going to highlight the Article 2 of the International Convention on the Prevention and Punishment of the Crime of Genocide (1948). This was established by the Special Tribunal on Violations of Human Rights of Political Prisoners and Prisoners of War in the United States Prisons and Jails which was convened by 88 sponsoring and endorsing organizations from all parts of the United States. The members of the Special Tribunal assumed jurisdiction pursuant to accepted principles of international law approved and adopted by the world community under the United Nations Charter, in accordance with the precedents of Nuremburg and Tokyo Tribunals and following procedures approved by the Economic and Social Council of the United Nations (Resolution 1503 [XL VIII]). Here, Genocide was defined in the following way:Genocide: any of the following acts committed with intent to destroy, in whole of in part, a national, ethical, racial or religious groups as such:*Killing members of the group;
*Causing serious bodily or mental harm to members of the group;
*Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
*Imposing measures intended to prevent births within the groups;
*Forcibly transferring children of the group to another group. Now, if genocide doesn’t describe the conditions and calculated state-sanctioned murders going on on death row then I don’t know what does. In fact, points 1-4 describe a lot of ailments people are facing everyday in the ghettos, prisons and communities where drugs and alcohol flood the people’s daily lives. What American’s problems is they want to compare this country’s atrocities to other country’s atrocities, and when they do that, they often come back with “Well, it ain’t so bad.” We have to demand that people drop that mentality. If America is going to flaunt itself as this amazingly advanced and civilized country then we are going to have to hold them to that. We can’t allow one to say – “Well look at how it is in Africa.” Africa has never had the advantage of being an Imperialistic country that sucks the resources out of other countries. We have to hold America to the standards it has set for itself and as of now America has failed miserably. What we see going on in America is systematic genocide. It is subtle in its form: booming prison systems made to seem like rehabilitation centers when they are just like concentration camps; tobacco products made to look cool for kids when it’s only killing them; lack of Health Care provided while curable diseases are ravishing the communities; police murders which are given passes under the law; purposeful poverty; and the most blunt being Capital Punishment. Capital Punishment is an “in your face, what are you going to do about it” type of thing. It can be defeated just like all of the above. And in truth, Capital cases spawn from conditions like mentioned above. What we have are politicians in our face screaming words like “Terrorist,” “Fundamentalist,” etc. They use these words to instil fear, to push us down and to capture the way we think about others. We have to do the same with our words. We must not feel inconvenienced to call things/people as they are. We must not allow ourselves to be frightened into a state of immobility. We’ve surrendered our rage and given it to Governmental monstrosity. We can only empower ourselves by verbalizing the truth. This will not only allow us to learn how to fight the enemy, but it will bring healing to the constant pain and frustrations that we feel. I’m here to expose the death penalty for what it is. I’m here to call these politicians exactly what they are by what they live out. I won’t allow them to dilute their conscience into believing that they aren’t the problems that are creating the problems. I will continue to call them what they are and I will continue to scream that CAPITAL PUNISHMENT IS GENOCIDE! AND I MEAN THAT!