Meet the One Man Whose Death Sentence Rick Perry Chose to Commute

The state of Texas on Wednesday performed the two hundred and fiftieth execution on Governor Rick Perry’s watch, the most executions under any modern governor in the country.

This means Perry has been governor for more than half of the 489 executions carried out since the reinstatement of the death in 1976. That’s a rate of one execution for every seventeen days Perry has been in office. (But it should be noted that the rate of execution was slightly higher under Gov. George W. Bush, who was in office for nearly six years, half as long as Perry has been. Bush executed 152 people, or one for every fourteen days he was in office.)

In his almost twelve years in office, Perry has commuted the death sentences of 31 people. But the U.S. Supreme Court forced his hand in a full 28 of those cases with their 5-4 decision from 2005 in Roper v. Simmons that rule capital punishment for juvenile offenders qualified as cruel and unusual. In two other cases—that of Robert Smith in 2004 and Doil Edward Lane in 2007—Perry heeded Atkins v. Virginia, a 2002 U.S. Supreme Court decision that declared unconstitutional the execution of the mentally retarded. (But that ruling gives the states the task of hammering out the criteria to determine mental competency, and, using its test, Texas in August put to death Marvin Wilson, despite his lawyers’ protests that he had an IQ of 61.)

That means that Perry has chosen to commute the death sentence of only one person, Kenneth Foster, Jr., in 2007. Foster was the getaway driver, not the triggerman, in an armed robbery that resulted in the death of Michael LaHood, Jr., a 25-year-old law student. Foster was convicted using Texas’s “law of parties” statute, which lets prosecutors try accomplices to crimes ending in death on capital murder charges. The Texas Board of Pardons and Paroles recommended that Perry commute Foster’s sentence, and Perry heeded the board’s recommendation, sparing Foster’s life on the day he was slated to be executed.