Without the possibility

By Published by The Editorial Board

Published: June 11, 2008

Gov. Timothy M. Kaine was well within his authority Monday to commute Percy Walton’s death sentence to life in prison without the possibility of parole.

Kaine is personally opposed to capital punishment for religious reasons. But since taking office, he as allowed five executions to proceed. That kind of record underscores Kaine’s campaign promise to follow a law he doesn’t support.

But in the Walton case, Kaine did things that should worry people on both sides of the death penalty debate. The governor essentially set up a new, secret process to evaluate Walton’s mental health and make his decision based on what he heard behind closed doors. What if a pro-death penalty governor had secretly pushed an execution using evidence taken behind closed doors?

Kaine first delayed Walton’s execution in June 2006 for six months to conduct his own investigation into Walton’s mental condition.

“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,” Kaine wrote Monday.

Who were the sources of Kaine’s information about Walton?

What connection had they had to the case in the past?

How many of them were employed by the commonwealth of Virginia — and were leery of reporting to their governor on such a high-profile case?

After the original six-month stay, Kaine continued to have Walton watched for another 18 months. It’s not known whether those involved in the process did anything for Walton except to observe him. For that matter, it’s also not known if any of those reporting back to Kaine knew Walton had once claimed that he would act crazy.

Kaine could have avoided this swamp two years ago if he had stayed Walton’s execution until the courts could rule on his mental health.

“The U.S. Supreme Court has made clear that new evidence of incompetency to be executed may be presented in court when that evidence arises,” Attorney General Bob McDonnell said in a statement after Kaine’s decision was announced. “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.”

We’ll never know what the courts would have said about Walton’s mental health, but maybe that was the point all along.

Kaine’s news release Monday included old and judicially unsubstantiated allegations of Walton’s IQ and his sanity at the time of the crimes. The courts have already ruled on those issues — and against Walton.

The best place to prove Percy Walton should have been spared was in the courts, not in a secret executive branch process. Gov. Kaine says Walton is too mentally ill to be executed. I guess we’ll just have to take his word for it.