STATEMENT OF GOVERNOR KAINE~ On the scheduled execution of Percy Levar Walton ~
RICHMOND -Governor Timothy M. Kaine issued the following statement on the scheduled execution of Percy Levar Walton by the Commonwealth of Virginia:
"I have carefully considered over the past 24 months the question of whether the Commonwealth can carry out the execution of Percy Levar Walton in a constitutionally permissible manner.
"There is no doubt that Walton killed three innocent people over a two-week period in November 1996. The victims met a fate they did not deserve and the families of the victims have suffered greatly from the loss of their loved ones. I have no reason to question the prosecutor's decision to seek the death penalty or the judge's decision that death was an appropriate sentence.
"The courts have emphasized, however, that it is unconstitutional to execute a person who is mentally incompetent. The late U.S. Supreme Court Justice Lewis F. Powell, Jr. wrote in the seminal case of Ford v. Wainwright, 477 U.S. 399 (1986), that the Eighth Amendment of the U.S. Constitution 'forbids the execution of those who are unaware of the punishment they are about to suffer and why they are to suffer it.' He further concluded that the execution of a mentally incompetent inmate would be a 'uniquely cruel penalty' where the inmate could not comprehend that they are about to die and could not 'prepare, mentally and spiritually' for the execution.
"Thus, the question of Walton's mental status is of the utmost importance in assessing whether the Commonwealth may carry out his death sentence. For this reason, the court system has wrestled with the question of whether Walton's mental capacity imposes a bar to his execution. Notwithstanding consistent decisions upholding his conviction, the courts found it necessary to carefully examine whether Walton's death sentence could be carried out consistent with the U.S. Constitution.
"In this regard, a few days before Walton's initial scheduled execution date of May 28, 2003, the U.S. District Court for the Western District of Virginia granted Walton a stay of execution in order to determine Walton's mental competence. In July 2003, following extensive submission of evidence about Walton's mental state from 1997 through 2003, the court ruled that he was competent to be executed. A three-judge panel of appellate judges of the United States Court of Appeals for the Fourth Circuit vacated the lower court ruling, directing a broader inquiry into Walton's mental state. Before that inquiry took place, the entire court reconsidered the panel's decision in an en banc review. The en banc court found Walton competent to be executed by a narrow 7-6 majority."In issuing its ruling, the Fourth Circuit properly limited its consideration to psychiatric evaluations and other evidence pertaining to Walton's mental state during the period from 1997 to 2003. By the time I first reviewed this matter, shortly before Walton's scheduled execution in June 2006, three years had passed since the evidence on his mental competence was presented to the court.
"I noted at that time that Walton's clemency petition presented significant evidence that Walton had schizophrenia, that such a mental illness can cause serious deterioration of mental competence, and that Walton's mental state had deteriorated since 2003 such that there was more than a minimal chance that Walton no longer knew why he was to be executed or was even aware of the final punishment he was about to receive. Due to the history of judicial concern about his mental status, I determined that it was important to have current and independent information about Walton's mental condition in order to comply with the law forbidding execution of a mentally incompetent person. Accordingly, I delayed Walton's June 2006 execution date until December 8, 2006, for the purpose of conducting an independent evaluation of his mental condition and competence.
"During that six-month period, I was provided with current and independent information pertaining to Walton's mental state from a number of sources including a thorough review of records maintained by the Department of Corrections, updated evaluations by psychiatrists, and information provided by persons who had interacted with Walton on a regular basis over a period of years.
"After reviewing the information, I was compelled to conclude that Walton was seriously mentally impaired and that he met the Supreme Court's definition of mental incompetence. Because one could not reasonably conclude that Walton was fully aware of the punishment he was about to suffer and why he was to suffer it, I decided that his execution could not proceed at that time.
"At the same time, it was within the realm of possibility - though unlikely - that Walton's mental impairment was not permanent. As a result, I concluded that a commutation of his sentence was not then appropriate. Rather, continued observation of Walton's condition over a more extended period of time was the appropriate course of action. Accordingly, I delayed his execution date by an additional 18 months, to June 10, 2008.
"Over the course of those 18 months, there has been no discernible improvement in Walton's condition and no evidence that his mental impairment is temporary. Walton differs in fundamental ways from other death row offenders. He lives in a self-imposed state of isolation that includes virtually no interest in receiving or understanding information. Walton communicates only infrequently, almost invariably in response to direct questions, and those responses are minimal in nature. He has nothing in his cell other than a mattress, a pillow and a blanket. He shows no interest in contact with the outside world and has no television, radio, magazines, books or stationery. He has no personal effects of any kind. This minimal existence has been in evidence for the past five years.
"In light of this information, I am again compelled to find that one cannot reasonably conclude that Walton is fully aware of the punishment he is about to suffer and why he is to suffer it.
"Given the extended period of time over which Walton has exhibited this lack of mental competence, I must conclude that a commutation of his sentence to life in prison without possibility of parole is now the only constitutionally appropriate course of action.
"Although Walton's mental incompetence alone precludes carrying out an execution that would violate the Constitution, there are other factors that I have considered in granting limited clemency. Since Walton's conviction and sentencing, separate Supreme Court decisions have placed limitations on executions that very nearly fit Walton's circumstances.
"The Court has ruled that the Constitution forbids executing an individual who: commits a capital crime under the age of 18 years old; was insane at the time of the capital crime; or is mentally retarded due to intellectual disabilities evidenced before the age of 18.
"In this instance, Walton committed these murders less than two months past his 18th birthday. While he was not insane at the time of his crimes, there are strong indications that his mental illness started prior to the murders. While he scored a 66 on his most recent IQ test, which is below a standard for mental retardation (70 on an IQ test) set by the Supreme Court of Virginia, he appears to have fallen below that standard for mental retardation only after he turned 18 while the relevant legal standard in the Commonwealth requires that retardation be in evidence prior to that age.
"While no one of these additional factors would justify clemency for Walton standing alone, it is appropriate to employ the sound legal practice of considering and weighing the totality of the facts in determining whether to grant limited clemency to Walton.
"In light of the foregoing conclusions and in accordance with the powers granted to me as Governor under Article V, Section 12 of the Constitution of Virginia, I have granted Walton a commutation of his three death sentences to life imprisonment without the possibility of parole."
"In reaching this decision, I remain mindful of the terrible injustice that Walton perpetrated against Jessie E. Kendrick, Elizabeth W. Kendrick, and Archie D. Moore, Jr. My thoughts and prayers are with the families of these honorable people.
Now, here's what Bill Bolling had to say:
"I was very disappointed by Governor Kaine's decision to commute the death sentence of Percy Walton. The Governor's decision is inconsistent with the findings of the courts, and it sets a very dangerous precedent for evaluating cases of this nature in the future."In 1996 Percy Walton brutally murdered three innocent people in Danville. He had been tried and convicted of these charges and the court had decided that he should be put to death for these crimes. Walton's conviction and sentence had subsequently been reviewed by Virginia courts and federal courts, and these courts had consistently found that Walton was mentally competent and eligible for execution under the laws of the Commonwealth of Virginia.
"While the imposition of the death penalty should never be undertaken lightly, there are certain cases where the death penalty is an appropriate punishment for the crimes committed. That is certainly true in this case. By unilaterally concluding that Walton is mentally incompetent and substituting his own judgment for that of the courts, Governor Kaine has done an injustice to the families of Percy Walton's victims and set a very dangerous precedent for evaluating such cases in the future.
"My thoughts and prayers are with the families of the victims of Percy Walton's brutal crimes."
Finally, here's Bob McDonnell:
"Governor Kaine is within his authority under the Virginia Constitution to grant clemency when the ends of justice require it. Under the law, a person who is mentally incompetent may not be executed. Walton's mental health status was fully adjudicated in multiple courts. Each concluded that he is not incompetent or mentally retarded. The United States Supreme Court denied Walton's petition in which he argued that he is incompetent and requested that his execution be stayed."The United States Supreme Court has made clear that new evidence of incompetency to be executed may be presented in court when that evidence arises. Nothing has prevented Walton from bringing such evidence to the federal courts for further review in light of the U.S. constitutional standard. Evidence of an inmate's competency is more effectively evaluated by a judicial officer. Thus I respectfully disagree with the Governor's decision that clemency is now warranted in this case.
"My thoughts and prayers are with the families of Walton's three murder victims, Jessie and Elizabeth Kendrick, and Archie Moore, Jr., who have suffered for more than 11 years."
A few quick thoughts.
1. Kaine is correct that "it is unconstitutional to execute a person who is mentally incompetent."
2. Ergo, Kaine is also correct that "the question of Walton's mental status is of the utmost importance in assessing whether the Commonwealth may carry out his death sentence."
3. To determine mental competence, Kaine "was provided with current and independent information pertaining to Walton's mental state from a number of sources including a thorough review of records maintained by the Department of Corrections, updated evaluations by psychiatrists, and information provided by persons who had interacted with Walton on a regular basis over a period of years."
4. From that finding flows yet another correct conclusion by Tim Kaine: "Walton's mental incompetence alone precludes carrying out an execution that would violate the Constitution."
5. In short, Kaine made the correct decision in this case, based on the law and the constitution.
6. Bill Bolling claims that Kaine, "unilaterally conclud[ed] that Walton is mentally incompetent and substitut[ed] his own judgment for that of the courts." That's simply not true, as point #3 above makes clear.
7. Bob McDonnell's response is far more measured than Bolling's outburst, as he acknowledges Kaine's authority to grant clemency and also that "a person who is mentally incompetent may not be executed." In the end, McDonnell simply states his belief that "[e]vidence of an inmate's competency is more effectively evaluated by a judicial officer" than by Gov. Kaine." That's his opinion, and he's entitled to it, but why he believes that is unclear.
8. Bottom line: Kaine made the correct call in this case; McDonnell acknowledges Kaine's right to do what he did (but partly disagrees -- I think -- with the conclusion); Bolling throws a hissy fit in claiming that Kaine's action "sets a very dangerous precedent."
The fact is that executive clemency has always served two roles -- as another way of rewarding prisoners for good behavior in a way that Virginia law says courts can't, and as a check on excesses in the court system. What many people don't realize is that appeals courts do not have the right to change sentences unless the sentence is unconstitutional. They can't look at a case like Percy Walton's and say, "We think a life sentence is appropriate here." They can only say, "It is unconstitutional to impose the death sentence here." Courts will say, "The only way you can get a lighter sentence is to go to the Governor." And in Bill Bolling's view, the Governor's job would then be to say "Without even looking at the details, the answer is 'No.'" The Virginia Constitution gives to the Governor the discretion to use the clemency power. It is an abuse of discretion to refuse to use your discretion.
When Chuck Robb became Governor in 1982, he asked his staff, "How many times did John Dalton grant clemency during his term?" The answer came back; I think it was "30 times." (If it wasn't 30, it was close to that.) Robb said, "OK -- I am not going to exceed Dalton's total." And he didn't. I didn't keep track of clemency grants under subsequent governors, but I'd bet that they didn't go over Dalton's total either.