Va. Governor Commutes Death Sentence
Kaine Gives Murderer Life, Calls Inmate Mentally Unfit
By Jerry Markon - Tuesday, June 10, 2008 - Virginia Gov. Timothy M. Kaine has stopped tonight's execution of triple murderer Percy L. Walton and commuted his sentence to life in prison without parole, saying that Walton is mentally incompetent and that putting him to death would be unconstitutional.
In a lengthy statement yesterday, Kaine (D) said he canceled the execution, scheduled for 9 p.m. at Greensville Correctional Center in Jarratt, because "one cannot reasonably conclude that Walton is fully aware of the punishment he is about to suffer and why he is to suffer it." It was the first time that Kaine has commuted a death sentence since taking office in 2006.
Walton pleaded guilty in 1997 to killing Jessie and Elizabeth Kendrick, an elderly Danville couple, and his neighbor Archie Moore. His attorneys have contended for years that Walton is mentally ill, and that his condition has deteriorated while he has been on death row.
Family members of the victims said they saw no justification for mercy.
"I don't think he deserves it," said Irene Jurscaga, Elizabeth Kendrick's sister, who is writing Kaine a protest letter. "He broke into my sister's house and killed them execution style. He had them kneel. He knew what he was doing. . . . He knew how to kill and hide his gun and take my brother-in-law's car. My sister begged him for her life."
An attorney for Walton, Jennifer Givens, welcomed the commutation. "Percy Walton is extremely mentally ill and profoundly impaired, and so obviously I think the governor acted appropriately and compassionately in granting our clemency request," she said.
Kaine is a Catholic who personally opposes the death penalty but has said he will enforce the law. Since taking office, he has allowed five executions and delayed Walton's execution twice and another inmate's briefly.
His decision to block Walton's death by lethal injection continues a long-standing debate over capital punishment in Virginia, which had been effectively put on hold in the fall because the Supreme Court was debating the constitutionality of the procedure. After the court ruled it was not cruel and unusual punishment, Virginia resumed executions last month with the lethal injection of killer Kevin Green. Virginia has executed 99 people since the U.S. Supreme Court reinstated capital punishment in 1976, second only to Texas.
Kaine had delayed Walton's execution in 2006 to allow for an independent evaluation of his mental condition and competence. Based on that evaluation, the governor delayed the execution an additional 18 months, saying that Walton was severely mentally impaired but that it was possible his condition could improve.
That didn't happen, Kaine said in his statement yesterday. He said that there "has been no discernible improvement in Walton's condition" over the past 18 months and that "he lives in a self-imposed state of isolation that includes virtually no interest in receiving or understanding information." He said Walton has nothing in his cell other than a mattress, a pillow and a blanket, has no personal effects and "shows no interest in contact with the outside world."
Kaine said that in reaching his decision, he remained mindful of "the terrible injustice that Walton perpetrated" against his victims. "There is no doubt that Walton killed three innocent people over a two-week period in November 1996," Kaine said. "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."
The U.S. Supreme Court ruled in 1986 that execution of the mentally ill violates the constitutional prohibition against cruel and unusual punishment. The court said death-row inmates must be able to comprehend that they are about to be executed and why. But the high court left it up to states to define who is sane.
Virginia Attorney General Robert F. McDonnell (R) agreed that "a person who is mentally incompetent may not be executed." But he said he opposed Kaine's decision because the courts had rejected that argument in Walton's case. "My thoughts and prayers are with the families of Walton's three murder victims . . . who have suffered for more than 11 years," McDonnell said.
Statement of Gov. Kaine on the Scheduled Execution of Percy Levar Walton
Monday, June 9, 2008 - Virginia Gov. 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.