Regarding Percy Walton

Tonight at 9 p.m. EST the state of Virginia is scheduled to execute Percy Walton.

There is no doubt that Walton committed the crimes for which he was convicted -- he pleaded guilty in 1997 to shooting Jessie and Elizabeth Kendrick, an elderly couple, and later killing his neighbor, Archie Moore, stuffing his body in a closet and sprinkling it with cologne.

There is also no doubt that Walton is profoundly mentally ill and possibly mentally retarded. His attorneys say he believes that his execution not only will bring his victims back to life (if only!) but it might also secure him a spot on national television, raise his grandfather from the dead and earn him a trip to Burger King on a motorcycle.

Walton's attorneys say that Walton, 27, who experts have testified is mentally retarded and schizophrenic, has spent most of his time on death row pacing his cell, collecting piles of salt and pepper packets and babbling nonsensically to himself.

As has been frequentally noted on this blog, the U.S. Supreme Court has ruled in Ford v. Wainwright that in order to be executed, one simply must understand that one is being executed and why one is being executed.

This bar is too high. But that notwithstanding, Walton would appear to not wholly grasp the concept of execution (unless there is some religion out there that I am unaware of that says when you die, you go to Burger King on a motorcycle).

There is also the question of mental retardation. The U.S. Supreme Court ruled in 2002 in Atkins v. Virginia that states can't execute mentally retarded people. Unfortunately, the Court left it to the states to define mental retardation -- and all of a sudden, lo and behold, there was hardly a single mentally retarded person among the nation's approximately 3,400 people on death row.

(Two interesting side notes. First, the state of Virginia continues to try to execute Atkins. Remember: the Supreme Court did not say that Atkins is mentally retarded. They simply said you can't execute mentally retarded people. Second, the state of Texas decades ago tried to argue "future dangerousness" in the case of one person facing a death sentence by pointing out that he was mentally retarded. Then, after Atkins v. Virginia came down the state reversed itself and argued that the inmate was not mentally retarded, even though the state had used this very argument to secure a death sentence! I'm not sure what word I'm looking for here, but perhaps "dissembling" comes to mind.)

Anyway, back to Walton. He has been measured with an IQ of 66, but according to the courts he has not proved he is mentally retarded.

Severe mental illness, and an argument for mental retardation, and yet in less than 12 hours, this execution is scheduled to go forward.

You know what? If I were a supporter of the death penalty, I would be fighting with every bit of power in me to stop this execution. It plainly demonstrates what a mockery the death penalty system (and appellate system) is.

We're really about to execute someone who thinks that after the execution he is going to ride to Burger King on a motorcycle?

Come now.

Governor Kaine, are you listening? You now have 11 hours to stop this madness.