June 9, 2008 -- Virginia Gov. Tim Kaine announced this afternoon that he will commute the death sentence of convicted triple murderer Percy Levar Walton because he does not believe Walton meets the Supreme Court criteria of mental competence required for an execution to proceed.
Walton, now 29, was scheduled to become the 100th convict executed in Virginia since the federal reinstatement of the death penalty in 1976, a capital punishment tally topped only by the justice system in Texas. He was sentenced to death after he admitted killing an elderly couple and another man in their homes over a 10-day period in 1996. He was 18 years old at the time.
"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," Kaine, a Democrat who personally opposes the death penalty, said in a lengthy statement.
Before commuting the death sentence, Kaine twice had granted temporary reprieves so officials could try to better understand whether Walton was insane, thereby barring him from death penalty consideration, according to the 1986 U.S. Supreme Court ruling in Ford v. Wainright. Any inmate sentenced to die for a crime must understand the punishment and why the punishment is being meted out, the highest court ruled.
In the most recent reprieve, which followed an initial six-month stay, Kaine gave himself 18 months -- until Tuesday night -- to rule on Walton's fate. He said that he believed that Walton was unfit for execution, but that there was a chance that his condition could improve. It didn't.
"Walton differs in fundamental ways from other death row offenders," Kaine said. "He lives in a self-imposed state of isolation that includes virtually no interest in receiving or understanding information. Walton communicates infrequently, almost invariably in response to direct questions, and those responses are minimal in nature."
Opponents of the death penalty had lined up behind Walton's cause. An action notice by Amnesty International describes him as being severely schizophrenic and details Walton's alleged belief that he is Jesus Christ and would come back to life as soon as he was executed. His prison behavior, which includes refusals to bathe, reportedly earned Walton the nickname "Crazy Horse."
"He has nothing in his cell other than a mattress, a pillow and a blanket," Kaine said. "He has 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."
Kaine said that he also took into account recent Supreme Court rulings that set some precedent for his decision-making. Specifically, the Court ruled against executing anyone who commits a capital crime under the age of 18. Walton was just one month beyond his 18th birthday when he committed his crimes. Kaine also cited Walton's most recent IQ test score of 66 -- which falls within range of the Virginia state standard for mental retardation -- as evidence of Walton's declining mental health.
"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," Kaine wrote.
David Clementson, a spokesman for Attorney General Robert McDonnell, told ABC News earlier Monday that Walton was scheduled to die at 9 p.m. Tuesday at the Greenville Correctional Center in Jarratt, Va. Only Kaine's hand or an act of the Supreme Court could put the brakes on the execution.
"Mr. Walton has no litigation going on, meaning it's completely up to the governor or the U.S. Supreme Court," Clementson said.
McDonnell, a Republican, came out publicly against Kaine's reprieve. After the clemency was granted, he released a statement of his own in which he "respectfully" disagreed with Kaine's decision.
"Walton's mental health status was fully adjudicated in multiple courts," he said. "Each concluded that he is not incompetent or mentally retarded."
Nash Bilisoly, lead attorney on Walton's defense team, said before the decision that there had been no change in the inmate's mental competency. "In our opinion, he remains severely mentally ill and profoundly impaired." Bilisoly told ABC News. "We're hopeful that he will grant the clemency request."
Three years before Kaine granted the first of his two reprieves and just days before the scheduled execution, the U.S. District Court for the Western District of Virginia granted a stay of execution to look into Walton's mental state using records from 1997 to 2003. The court ruled that he did fit the state's definition of mentally competent, but a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit vacated the ruling. The full court then reconsidered the decision and ruled 7-6 that the prisoner was competent.
The six dissenting appeals court judges found substantial evidence that Walton did not understand that being executed would mean the end of his life.
Carl Tobias, a law school professor at the University of Richmond, applauded what he called "sound legal reasoning on the part of the governor." Specifically, he said, Kaine was very clear about his belief that Walton did not clearly understand the significance of his punishment. "I think it's going to be controversial," Tobias said of Kaine's decision. "But I think it's very defensible."
Kaine's decision came at a politically sensitive time for him personally: He is widely mentioned as a possible running mate for recently crowned Democratic presidential nomineee Sen. Barack Obama, and Obama's vice-presidential search has just begun.
During Obama's 2004 U.S. Senate run, he supported the idea of a national moratorium on the death penalty to address a "flawed" system of prosecuting capital crimes. As a state lawmaker in Illinois, he had helped push through some of those changes, such as the tape-recording of police interrogations to provide more accurate evidence to jurors deciding death penalty cases. As a presidential candidate, he has said he accepts the death penalty as a punishment for the most heinous crimes.
"While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes — mass murder, the rape and murder of a child — so heinous that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment," Obama wrote in his autobiography, "The Audacity of Hope."
Kaine, who personally opposes the death penalty, has been governor for five executions, including most recently that of Kevin Green, who was put to death May 27 for murdering a woman during 1998 drugstore robbery.
Green was the third prisoner put to death in the United States since the Supreme Court ended a defacto seven-month hiatus on executions while the constitutionality of lethal injection was challenged. The court ruled in April that the method of execution did not meet the criteria of "cruel and unusual punishment" and execution resumed across the country.
The Supreme Court is also currently considering whether a child rape conviction should be punishable by the death penalty.