The Constitution, Capital Punishment And Clemency Proceedings

By CARL TOBIAS
Thursday, Dec. 28, 2006

Three critical developments recently occurred that will propel increasing scrutiny of lethal injections, the method used by the federal government and practically all states for executing death-row inmates.

First, Governor Jeb Bush (R-Fla.) suspended all executions in Florida, after prison officials botched the execution of Angel Diaz, and appointed a commission to analyze the lethal injection process. Second, U.S. District Judge Jeremy Fogel found that California's "implementation of lethal injections is broken" and urged that it be revamped. Third, the Maryland Court of Appeals held that the state's lethal injection protocol had been adopted in a procedurally deficient manner and suspended all executions in Maryland until the defect is remedied.

These developments received greater notoriety than related action by Virginia Governor Tim Kaine that may prove equally important to the national debate over capital punishment.

Virginia Governor Invokes Clemency Power for Potentially Mentally Incompetent Inmate

Governor Kaine recently honored the Constitution by invoking clemency power to postpone Percy Walton's scheduled execution because of significant questions about his mental competence. Kaine found Walton's mental status critical because the U.S. Supreme Court held execution of incompetent people unconstitutional in the 1986 Ford v. Wainwright case.

Justice Lewis Powell stated the Eighth Amendment forbids executing "those who are unaware of the punishment they are about to suffer and why they are to suffer it," because execution would be a "uniquely cruel penalty," if persons could not understand they would die and "prepare, mentally and spiritually."

The Ford case guided clemency review. Kaine stated he had "no doubt that Walton committed horrific crimes against innocent victims" or that their families had suffered greatly. Kaine said he had no reason to question the prosecutor's decision to pursue the death penalty or the court's decision to impose a death sentence.

In March of this year, seven of thirteen 4th Circuit judges found Walton competent, but they only had psychiatric evaluations and other information dating from 1997 up to 2003, but not beyond.

Kaine recently received evidence that Walton's condition had deteriorated since 2003. Out of courts' concerns that Walton did not know he was to be executed or why, Kaine sought current, independent information about his condition. Kaine assembled much data, which compelled his conclusion that Walton is severely mentally impaired and unaware of the punishment he would suffer and why.

Because Walton's impairment seems permanent, but may be temporary, commuting his sentence was improper. Instead, Kaine suspended Walton's execution for 18 months, during which time Virginia will continue to observe Walton. At or before the 18-month period Kaine will decide whether more information warrants a different conclusion.

Criticism of Clemency Decision Misguided

This resolution, premised on thorough, current data and an appropriate exercise of Kaine's constitutional duty to implement Ford's Eighth Amendment interpretation, was reasonable. However, two critics promptly castigated the decision.

Virginia's former Attorney General, Jerry Kilgore -- whom Kaine defeated partly because of Kilgore's death penalty views -- claimed Kaine violated his campaign pledge to impose the death penalty, adding "it's a shame anytime one person exerts his will over that of an unbiased jury [and] judges."

Virginia's present Attorney General, Robert McDonnell, was "most concerned about the impact [Kaine's] action could have on our justice system," arguing "multiple judges in multiple proceedings [found that Walton] is competent, is not mentally retarded, and legally permitted to be executed." McDonnell contended the decision about satisfying the "constitutional standard for competence to be executed is appropriately placed" in judges' hands, urging that Walton be executed "without any further delay [and] justice must be served."

Both critics overlooked relevant factual and legal considerations. Kaine declined to stop four other executions. Moreover, the assertion that multiple judges in several proceedings found Walton competent and, thus, satisfied Ford is technically accurate, but somewhat misleading. No judge has analyzed Walton's competence after 2003, but several experts who have since evaluated Walton determined that his capacity had deteriorated.

The Fourth Circuit split 7-6 on Ford's standard and whether a judge had properly found Walton competent, which is not a ringing endorsement for imposing death.

Governor Kaine's Lasting Impact

Recent developments in California, Florida and Maryland have captured more attention than Governor Kaine's proper discharge of his constitutional duty under Ford by suspending Percy Walton's execution until it is clear that he understands he will be executed and why. Nevertheless, Kaine's actions may have just as much lasting impact, because they may serve as a model for other governors who receive clemency requests.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.