Kenneth Foster Jr. was scheduled to be executed yesterday for a murder he did not commit or intend to commit. But in a remarkable turn of events, Texas Governor Rick Perry did something he rarely does: he commuted Foster’s death sentence. In fact, Foster’s is the only sentence he has commuted voluntarily. In a letter Foster wrote to Governor Perry in the days before his imminent death sentence, he stated that the governor is a history-maker and the he is a part of the governor’s history. He was right.

Governor Perry should be commended for stopping the execution. He recognized the punishment was too harsh given the circumstances. In a press release issued after the commutation order, Perry stated that he was concerned that Foster and the actual shooter were tried together. He also suggested that ending joint capital trials is something the state legislature should consider.

The governor is right. The state legislature should look at the circumstances which led to Foster being tried with the killer. The legislature should also examine the law which allowed Foster to face the death penalty in the first place. Foster was convicted under Texas’ law of parties. This law allowed Foster to be sentenced to death for a murder that he did not commit nor intend to commit.

Foster’s commutation was historic. Texas had already executed a man convicted under this unjust law this year. The Dallas Morning News reports that 80 people on Texas’ death row were convicted under the law of parties. Twenty non-killers have been executed in Texas since 1982. That’s 20 people killed for crimes that they did not commit or intend to commit.

While the Texas law is broad, there are other states with similar laws. Felony murder laws allow for criminal liability for a murder if it happens in the process of a felony. These laws make people who were not the “trigger person” responsible for murders they never intended to happen. And like Texas, other states allow defendants convicted in this way to be executed.

Legislatures throughout the country should heed to Governor Perry’s advice. They should examine the way capital defendants are tried. And while they’re at it, they should look at their felony murder statutes, abolish them for non-killers in death penalty cases and make them history.

Yesterday Melissa Goodman, a staff attorney from our National Security Project, blogged on HuffingtonPost.com about the strange case of Mohammed Hossain and Yassin Aref, two men convicted here in New York of supporting a fake assassination plot concocted by the FBI. In civil cases against its illegal surveillance program, the government has avoided arguing the legality or constitutionality of the program by saying any discussion of it would compromise national security (a.k.a. the famous “state secrets” argument). Similarly, in this case, government prosecutors have evaded defending its illegal surveillance of Hossain and Aref by using secret arguments that only the judge - and not the defendants’ lawyers - can see. Melissa explains how these secret arguments deny defendants in criminal cases a fair shake at justice:

Now, it’s a pretty basic rule that the government is not allowed to prosecute you for a crime based on evidence it gathered illegally, like evidence obtained through warrantless surveillance that is not based on probable cause. Yet it is quite possible that a number of criminal prosecutions in the past few years have been tainted by illegal surveillance by the NSA. We just don’t know. The government’s not telling. Who knows what they are saying in their secret papers? In this case, not even the judge is telling…The government’s use of secrecy as a weapon to avoid accountability for the illegal NSA program is bad enough when it is employed in the nearly 50 civil cases challenging the program. But it is a problem of an altogether greater magnitude when it is used in criminal cases, because the stakes are much higher. A conviction can lead to years in prison.

It’s a new, ugly frontier in the judicial system when it’s not justice that’s blind: it’s the defendants.

On the second anniversary of Hurricane Katrina, the ACLU published Broken Borders: Two Years After Katrina, a report that focuses on the horrifying conditions and scary lack of planning at the Orleans Parish Prison, where after the levees broke, prisoners were left for days, still locked up, in chest-deep water and no help in sight. To accompany the release of the report, we asked videographer Carol Cassidy to interview Katrina survivors in New Orleans. Carol also wrote about what she saw as she traveled through New Orleans in The Huffington Post today:

Just after Katrina, an army veteran is dragged from his home by the far-too-excited National Guard. At gunpoint, they get him handcuffed, face down on concrete, before they accuse him of looting his own home. He is locked up for almost seven months, then freed, as mysteriously as he was taken. Never actually charged.

You can watch the video interviews at www.aclu.org/brokenpromises.

Tomorrow, Texas will execute an innocent man. Kenneth Foster Jr., did not murder Michael LaHood, nor anyone else, for that matter. No, Foster will be executed for driving the car from which another person shot LaHood. If this sounds illogical, that’s because it is, as Christopher Hill points out today in TomPaine.com:

[Foster] had no idea that one of his passengers, Mauriceo Brown, would jump out of the car with a gun and kill Michael LaHood. All of the passengers eventually said that they did not know what Brown would do. Even Brown said that there was no intent to kill anyone…Now, Foster is facing a death sentence because of something completely illogical in the law - a person can be executed for murder even though he did not murder anyone and did not intend that a murder take place.

Sean-Paul Kelley, a good friend of LaHood’s, also blogged about the case in The Huffington Post, calling the upcoming execution “senseless vengeance, a barbarism cloaked in the black robes of justice.”

Together with the Electronic Frontier Foundation and the American Booksellers Foundation for Free Expression, today we asked the Ninth Circuit Court of Appeals to reconsider its decision (PDF) that the government does not need a warrant to monitor the Web sites people read. The brief, submitted in United States v. Forrester, points out that people reasonably expect to be able to read the Web without the fear that the government is looking over their shoulder.

The issue of Web privacy is one small aspect of the larger, fascinating, and unresolved question of how to apply the protections of the Constitution to the Internet. Technological change often prompts a reevaluation of the Constitution’s meaning. In 1877, the Supreme Court concluded that the Fourth Amendment protects postal mail. Ninety years later, in United States v. Katz, the Supreme Court considered the novel question whether the Fourth Amendment’s protection extends beyond postal mail to telephone conversations. It held that it does, and set out the general principle that the Fourth Amendment protects individuals whenever they have a reasonable expectation of privacy.

Thirty years after that, in 1997, the Court first addressed the application of the Constitution to Internet communications. That year the Supreme Court extended full First Amendment protection to the Internet in ACLU v. Reno, recognizing that “the content on the Internet is as diverse as human thought.” In Forrester, we are asking the Court to grant Internet speech full Fourth Amendment protection as well. One of the reasons the Internet is such a powerful means of communication is that individuals are free to explore their ideas and interests free from the fear of social stigma or government observation. Privacy and free speech go hand-in-hand.

Kot Hordynski is a student at the University of California, Santa Cruz, and a member of Students Against War, a group that the Pentagon labeled a “credible threat” to national security in its Threat and Local Observation Notice (TALON) report system and database. (Apparently, a rally opposing an on-campus military recruitment event got them on the list.) In February 2006, the Students Against War - along with other plaintiffs, including the ACLU - sued the Pentagon for refusing to release records under the Freedom of Information Act relating to the surveillance of peace groups.

This week, the Department of Defense announced that it’s shutting down TALON and yesterday Kot wrote in The Huffington Post about his life as a “credible threat:”

“It has always been a wonder to me how this happened - how a group of Santa Cruz students, along with Quaker and church groups, found itself on a terrorist monitoring database. This was not only ridiculous, but wrong. I also realized that being on the list had grave implications not only for our organization but for the rest of America: after all, if college students and religious groups were being listed as credible threats, then who was safe from surveillance?”

You can listen to Kot talk about why he got involved in the lawsuit in a podcast from last year’s ACLU Membership Conference.

Government deception joined prosecutorial misconduct, reliance on false confessions, and withholding evidence in the list of plagues that hamper North Carolina’s death penalty process. Today, Christopher Hill, state strategies coordinator for the Capital Punishment Project, wrote about North Carolina state officials who misled a federal judge into believing that a doctor would be present at the execution. Christopher writes in the News & Observer:

But in reality…the supposedly present doctor “stood almost as far away as possible from the observation room window through which he could have observed” the dying inmate. The physician admitted that he did not monitor Brown’s consciousness or observe other vital signs on a bispectral index monitor (BIS). Furthermore, the physician testified that he was not even trained to operate the device.

In other death penalty news, Texas is barreling towards its 400th execution, scheduled for this evening. Death row inmate Johnny Ray Conner made a last-minute appeal to the Supreme Court to review his case; he’s asking for a new trial because his previous defense team ignored a preexisting leg injury that causes a limp, which could preclude him from being the murderer who sprinted away from the crime scene 10 years ago.

Last week Attorney General Alberto Gonzales proposed regulations aimed at radically limiting the ability of federal courts to review the constitutionality of death sentences imposed in state courts. These regulations were issued pursuant to a little-noticed provision added at the last minute into the 2006 bill reauthorizing the USA Patriot Act.

The regulations have provoked a heated reaction from judges, law professors, and death penalty defenders, and the issue has received coverage in the New York Times, Washington Post, Los Angeles Times, and many other media outlets in recent days.

The Capital Punishment Project opposes the Attorney General’s unfair regulations. ACLU attorney Matt Stiegler recently told the National Law Journal: “The Department of Justice has a real opportunity here to play a meaningful role in this process and it seems not interested.”

Under the proposed regulations, for the first time the decision of whether to fast-track challenges to death sentences in particular states would be made by the Attorney General, not the federal courts. And, as the editors of the Fort Worth Star-Telegram recently observed, “the proposed rules don’t seem to guard against all-too-real flaws in death penalty representation.”

The ACLU joined many others in urging the Attorney General to provide adequate time for the public to review and comment on the proposed regulations. This request was granted, and the Attorney General now will receive comments through September 24.

Last week we launched a new ad campaign calling out Democratic leaders Harry Reid and Nancy Pelosi for their sheep-like behavior in Congress’ late-hour collapse on FISA rules and spying oversight. Even FoxNews found it amusing, and covered it in the last item on this page. Hardly the place we usually look for a shout-out.

Congress and the judiciary have the constitutional duty to put a check on the president’s power. When Republicans controlled Congress, the president was able to pass some very nasty legislation (the Military Commissions Act and the reauthorization of the Patriot Act, just to name a couple). And when Democrats took control of Congress last year, we hoped America would finally see the legislature actually fulfill its duty to reign in executive power.

We were wrong. Earlier this month we watched too many Congressional Democrats roll over and play dead as the President rammed the FISA “modernization” bill through both chambers right before the August recess. Some called them sheep. We agree.

We’re not rolling over: We’re calling them on their weak-kneed cave-in to the president’s Patriot Act-style legislative tactics. We need lions, not sheep, protecting the Constitution. And if you agree, you can help support our new campaign.

On Thursday, the ACLU of West Virginia announced a settlement in Rank v. Jenkins, a case that charged the Secret Service and Office of Presidential Advance for violating a couple’s free speech rights at a presidential event.

Three years ago, Texans Jeff and Nicole Rank attended President Bush’s Fourth of July address on the West Virginia capitol grounds. But unlike most of crowd in attendance, the Ranks went to express their displeasure with the President. They did so by wearing homemade T-shirts with slogans critical of the President. When the event staffers saw the Ranks, they demanded they either cover their shirts, or leave the event. When the couple responded by asserting their First Amendment right to free speech, they were arrested for trespassing, handcuffed, and removed from the event.

The ACLU represented the couple in their lawsuit against Greg Jenkins, then the Deputy Assistant to the President and Director of White House Advance. In an interview with political writer Chris Weigant in The Huffington Post, ACLU attorney Jonathan Miller said:

I think that the settlement of the West Virginia case demonstrates that the White House and the Department of Justice are concerned about the Jenkins case…we think the size of the settlement, and the fact that it came so close to the August 14th trial date, indicate serious concerns on the part of the Justice Department and the White House about their ability to successfully prosecute these cases before a jury.

The Charleston Gazette has a great article about the settlement; you can learn more about the case at www.aclu.org/silenced.