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Statement of Gov. Kaine on the Scheduled Execution of Percy Levar Walton

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Monday, June 9, 2008; 5:17 PM

Virginia Gov. Timothy M. Kaine issued the following statement on the scheduled execution of Percy Levar Walton by the Commonwealth of Virginia:

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"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.


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