Annals of the US punishment system: Percy Walton

The (Democratic) governor of our state, Timothy Kaine, today announced that he has delayed for a further 18 months the execution of Mr. Percy Walton, a 28-year-old African-American man. This delay is intended to give the state time to determine whether Walton is mentally fit to be executed.
As Frank Green, the excellent staff writer of the Richmond Times-Dispatch who follows death-penalty affairs in the state, wrote:

    Kaine said, “I am compelled to conclude that Walton is severely mentally impaired and meets the Supreme Court’s definition of mental incompetence.”
    The U.S. Supreme Court has ruled a person is not competent to be executed if he is unaware of the punishment about to be suffered and why.
    Kaine said it was possible, though unlikely, that Walton’s mental impairment is not permanent. So, he said, a commutation of Walton’s sentence was not yet appropriate. He then delayed Walton’s execution until June 10, 2008, to permit fur- ther observation.

Walton is a man who by his own admission has done some very bad things. In 1997, Walton pled guilty to the 1996 murders of his neighbors Jessie Kendrick, 80, Elizabeth Kendrick, 81, and Archie D. Moore Jr., 33.
I find the idea that a state– a state, moreover, that claims to be acting in my name– would set out deliberately to kill one of its citizens to be horrifying, and barbaric. But even within the paradigm of the death penalty being “thinkable”, the Walton case raises some extremely perplexing issues. To be executed, the US Supreme Court has ruled, a person has to be mentally competent enough to understand what is about to happen to him?? How ghoulish is that?
And then, there is a whole series of questions about the responsibilities of mental-health professionals under these circumstances. Should it be the responsibility of a mental-health professional to improve Mr. Walton’s meantal-health status condition sufficiently that he then becomes “fit” to be executed?
According to Frank Green’s article, Walton has been under the care of mental health personnel employed by the Virginia Department of Corrections, and one of Walton’s lawyers has explained that it is these DOC personnel– and not Walton’s lawyers– who have determined the treatment that he should receive.
I wonder if it is mandatory under the law that a prisoner under these circumstances should follow any treatment course prescribed. (What if the prisoner is a Christian Scientist or has other religious-based objections to the procedures of physical medicine?) Generally, when the state forces a person with mental disabilities to follow a certain course of treatment this is justified only on the basis that it is to prevent the person causing harm to her/himself or others… But in this case, any mandating of treatment would be “justified” on the basis that the person should be made “fit” enough to have the state cause fatal harm to him.
The whole business is, of course, unspeakably tragic. If Virginia succeeds in killing Percy Walton, this won’t bring his victims back to life.
If these kind of questions interest you, go read the whole of Frank Green’s piece. You’ll find that the (Republican) Attorney-General of the state expresses impatience with the delays and just wants Kaine to get on with the execution. (I should note, though, that support for the death penalty here in Virginia does not break down along straight party lines. We’ve had at least one prominent Republican state legislator who came out very strongly against the death penalty. And Kaine, though he’s a Catholic, is not a complete opponent of the death penalty, at all…)
At the end of Green’s article is this appeal from a daughter of the elderly couple killed by Walton, that his death sentence simply be commuted– i.e., changed to a lengthy term of imprisonment– rather than having its ‘execution’ endlessly delayed:

    Barbara Case, of Brandon, Miss., daughter of the couple slain by Walton, said last night, “We don’t need another 18 months. It’s been 10 years.”
    “How is he going to get any better? Why didn’t he just commute his sentence,” she asked. Some relatives of the Kendricks have said in the past that they believe Walton should be executed.

17 thoughts on “Annals of the US punishment system: Percy Walton”

  1. Even within the medeival (or worse even, Biblical) eye-for-an-eye paradigm of capital punishment, it seems cruel to kill a human who was not cognisant and insightful of the crime at the time of the crime. And yes, they should also be cognisant and insightful at the time of the punishment too. I know that this is the minimum standard we adhere to for important issues of medical consent, and I would assume that at least the same would apply to the person’s “elligibility” [!] for execution. If that is a basic assumption, which IMHO it must be, then even if mental health workers “fix” the man so he becomes consistantly cognisant today to the circumstances of his execution (which is a highly unlikely, as those who have dealt with severely mentally ill patients like the case at hand would know very well) then that would still have no impact on his state of cognisance at the time of the crime. Since you cannot ever give someone awareness of their actions retroactively, it would still be barbaric to execute them for an act that was committed in a state of unawareness. [I can’t believe that I am subconsciously arguing for a non-barbaric execution; shame on me !]

  2. David, I think the only issue being questioned right now is PW’s fitness to be executed. No-one is currently questioning his mens rea at the time of the murders in question.
    In capital criminal cases, mental competence is an issue at three separate stages: at the time of the alleged crime (investigated ex-post-facto); during the course of the trial (“fitness to be tried”); and at the time of execution (“fitness to be executed”). There are so many interesting and disturbing issues involved here! Tony Duff, who’s a really good philosopher of punishment, has done a lot of work on them: his theory is, basically, that a court’s engagement with a criminal should be seen as a protracted series of communications. At the time of execution, the judge or his substitute should try to fully explain to the miscreant exactly why he’s about to be killed (and therefore, the miscreant has to be at least mentally capable of potentially understanding this communication.)
    Though I think Duff’s explanations of punishment are among the best there are, I am deeply opposed to capital punishment on principle. And actually, I think Duff is, too– I need to go back and check on that.
    Anyway, it’s nice to have even one commenter here engage with this issue!

  3. I’m also strongly opposed to capital punishment, so I’m probably the wrong person to ask for a nuanced distinction between suitable and unsuitable candidates for execution. It seems to me, though, that executing someone who can’t comprehend what’s happening to him is no more than gratuitous cruelty. I’d frame it less as a matter of communication than one of perception – unless a person can connect punitive action to past crimes, he experiences only meaningless pain – but there’s something profoundly wasteful about it.
    BTW, David: The “eye for an eye” doctrine isn’t what you think it is.

  4. Interesting argument, Jonathan…. So if the person can comprehend what’s happening to him, is that somehow supposed to make it less cruel? “Oh, now I completely understand why you’re strapping me to this gurney: it’s to shoot me up with a lethal mix of chemicals that will entirely obliterate me as a person, quite possibly after causing me terrible pain that I’ll be unable to express because you’ll already have collapsed my lungs… “? As opposed to: “Gurney? needles? chemicals? I’m not quite sure what’s happening here… anyway, when I will get to go to a Mcadonalds?” (The latter allegedly being the reaction of Percy Walton back in June as that earlier execution time approached.)
    This is a fairly weird discussion among three opponents of capital punishment, though…

  5. Helena, I wonder what you think about Peter Singer’s (“Dr. Personhood”) take on capital punishment.
    Jonathan, I agree with your characterization of capital punishment as gratuitous vengeance and cruelty. I have heard the arguments that try to ameliorate “an-eye-for-an-eye”. I am not sure I am convinced though. I think you would agree that it is an awfully quirky way of saying “an eye’s worth of compensation for the crime of maiming an eye”. And that whole “bondman” logic has been interpreted as “an-eye-for-an-eye” not applying in form to slaves, i.e. since they don’t get to take revenge, they get to be freed. It’s quite cynical actually. And if we look at “eye-for-an-eye” in the historical context of when it was proposed (OT times, 6000-2000 years ago) it wasn’t exactly a milieu of peace and brotherhood. The stories of ethnic cleansing style are not uncommon in the OT. And if wiping out Mr. X along with his whole family and tribe was kosher, since he belonged to tribe Y and worshipped god Z, it is hardly surprising that killing a man for killing another is prescribed without much room for nuance. This may be hard to swallow for those who look at things from a literal religious vantage point, but the fallacy may be in trying to pretzel our modern sensibilities to fit rules that may have been barbaric even 5000 years ago.

  6. So if the person can comprehend what’s happening to him, is that somehow supposed to make it less cruel?
    No, that simply makes it less gratuitous. If we accept for the sake of argument (if for no other purpose) that death is sometimes a suitable form of punishment, then a person who understands why he is being executed can comprehend that he is being punished for a particular crime. A person who can’t understand the purpose of his execution is, in his own mind, being killed for no reason. Given that the concept of punishment, at least as I understand it, requires that the person being punished connect cause and effect, then execution without comprehension is simply mindless violence.
    Of course, I also believe that punishment serves no purpose unless the person being punished has an opportunity to learn from the penalty. As far as I’m concerned, “capital punishment” isn’t punishment at all in any meaningful sense, and is instead a form of moral abdication that equates human beings with vermin. But if one accepts the premise that capital punishment is ever acceptable, then it follows that the person being executed must understand the nature and reasons for the penalty.
    David, while it may be “awfully quirky” to interpret the “eye for an eye” doctrine as providing for compensation, that is nevertheless how it was judicially interpreted by the time the Oral Law was codified. There’s plenty of case law from Talmudic times that discusses the fixing of compensation for various injuries. In OT times it may have been a different story – I don’t think we know enough about the historicity of the OT to tell which parts are true – but any discussion of the “Biblical doctrine” covers a very wide time referent.

  7. I don’t think any person could remain sane under sentence of death. The possibility of last-minute stays, or the eternal possibility of reprieve only make sanity even more impossible.
    Many years ago I passed two pleasant years in London. I wanted to be there, it was the first & only place I ever lived that I thought was home. But I am not British, I ultimately had no right to remain, and one fine day I was given 30 days to leave. It was the end of life as I knew it. I ran around like a crazy person for a month, trying to find a way to stay.
    On the last day, I was blind. My eyes were open, I could see images in front of me, but I could not see. I had to leave my flat, I had to say goodbye to my friends, I had to make my way to the tube, but I craved a blindfold. It was the only thing that could bring peace.
    Metaphysical literature claims that consciousness not only survives death, but is not dependent on the physical body. Metaphysical studies say that consciousness exists in the general vicinity of the brain & is influenced by it (as it, in its turn, influences the brain). Very lengthy, very careful, very systematic analysis of ones own states of consciousness, both wakeful and sleeping, tend to support metaphysical dogma. It also, from time to time, puts one in direct contact with non-physical entities. Which is to say that rigorous clairvoyant studies generally support religious ideas of an afterlife. Those who have made these studies unanimously conclude that religious concepts in this area are only a cartoon of reality.
    It should therefore be considered that not only does murder and execution interupt a work in progress (for who can know how any victim would ultimately turn out, given a full life), but sets the individual free to do whatever he may desire. Some things that such “liberated individuals” can do are not compatible with social tranquility. (You would not like to see my notes on serial suicides in this regard.)
    Moreover, the impact that such a death may have on other human beings can neither be predicted nor controlled – as our experience in Iraq proves. The sooner this heinous and barbaric practice is forever banned, the sooner we can become a healthier community.
    My apologies. I got carried away.

  8. Jonathan, Thanks. I am no religious or legal scholar, but due to my prefession, have had to read a bit about ethical thinking on compensation, whether from accidental or intentional loss of life and limb. I know a little about the Oral Law that you are talking about, from Maimonides and others (I am assuming you are a lawyer of some sort; may be presumptuous though). I have also read the principles of Sharia in this regard, both from Sunni and Shiah perspectives. The Muslims (I think) call it “diah”, which literally means “price”. Which kind of goes well with your concept of a measure for some form of non-bodily compensation. But as far a I understand, in both the Muslim Sharia and Jewish Oral Law, if the “owners of the blood” wish the killer to be killed, the judge will ask for capital punishment. I have not seen a Jewish or Muslim scholar who opposes capital punishment on religious grounds. Please correct me if you know/think it to be otherwise. Thanks.

  9. The Qur’an on the “eye for an eye” concept (Yusuf Ali translation):
    It was We who revealed the law (to Moses): therein was guidance and light. By its standard have been judged the Jews, by the prophets who bowed (as in Islam) to Allah’s will, by the rabbis and the doctors of law: for to them was entrusted the protection of Allah’s book [i.e. the Torah], and they were witnesses thereto: therefore fear not men, but fear me, and sell not my signs for a miserable price. If any do fail to judge by (the light of) what Allah hath revealed, they are (no better than) Unbelievers.
    We ordained therein [i.e. in the Torah] for them: “Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal.” But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (No better than) wrong-doers

  10. I know a little about the Oral Law that you are talking about, from Maimonides and others
    Ah, sorry for not being clear. The Oral Law is a term of art for the jurisprudence that was codified as the Mishnah and Gemara (i.e., the Talmud), with the codification occurring between about the -1st through 6th centuries but the legal developments beginning somewhat before. Maimonides and other later jurists fall into a different category.
    Talmudic opinion on the death penalty is somewhat mixed. On the one hand, while it was impossible for jurists to abolish the death penalty outright (because divine law can’t be abolished), several of them were distinctly uncomfortable with it and hedged it with rules of procedure that were nearly impossible to overcome. There is, for instance, the famous quote from Mishneh Makkot 1:10:

    ‘A Sanhedrin that issues a sentence of execution once in 7 years is a murderous tribunal. R. Eleazer ben Azariah said: Once in 70 years. R. Tarfon and R. Akiva said: If we were members of the Sanhedrin, no man would be executed.

    On the other hand, R. Shimon ben Gamliel’s reply to this was that the absence of capital punishment would “increase shedders of blood in Israel,” and there are other quotations supporting the death penalty as a form of justice. There are also instances in which jurists held that the rules of procedure could be relaxed where times of public disorder required a firm hand. So one might say that the debate in those times mirrored that of today!
    BTW, the Talmudic discussion of the “eye for an eye” doctrine takes place in Tractates Ketubot and Bava Kamma; there’s a summary of the interpretation here.
    Shirin, thanks for the Koran citation. There are quite a few coincidences between Jewish and Islamic law, both in terms of substantive principles and jurisprudential methods.

  11. Jonathan Edelstein
    If a man put out the eye of another man, his eye shall be put out. [ An eye for an eye ]
    The Code of Laws
    The Code of Hammurabi
    With all due respect of your view , I thing Hammurabi Cod of Law the cragell and source of all the laws of our live on this earth, and clrally staed what “eye-for-eye”
    The Talmudic is a book that the one religious high ranks Jew edited …

  12. There are quite a few coincidences between Jewish and Islamic law
    Yes, there are, and as you probably know, these coincidences are not coincidental. Mohammad very much admired the order he saw in Jewish society, as compared to the Pagan Arab society at that time, and sought to emulate it. The Qur’an makes it clear that Islam is the “end product” (my term) of the monotheistic progression that began with Judaism.

  13. Salah, isn’t it true that the interpretation of laws can change over time? The phrase “eye for an eye” meant one thing when Hammurabi enacted it, and probably meant the same thing when the Israelites first adopted it, but by the time of the tannaim many centuries later, experience and judicial precedent had transformed it into something else. It’s much like the way that the phrase “cruel and unusual punishment” in the United States Constitution doesn’t mean the same thing today as it did in 1789.
    Shirin, agreed on the continuity between Judaism and Islam, but it is of course never possible to tell when anything has reached its final form, and both Islam and Judaism are continually refining themselves.

  14. Jonathan, agreed on the “final form” question. I was merely citing the common doctrine, not my own beliefs or observations. :o}

  15. Salah, isn’t it true that the interpretation of laws can change over time? Posted by: Jonathan Edelstein at December 7, 2006 04:36 PM
    Jonathan Edelstein thanks for your replay.
    I did not arguing about interpretation of laws here, you went out of the main point.
    Its nice to see some one who is prod of his own beliefs or observations like you by saying “ There’s plenty of case law from Talmudic times” as if Talmud is first source of law, a lawyer like you knew that the very basic principle of law, the only ever source of law is the Code of Hammurabi.

  16. Jonathan,
    ” … it is of course never possible to tell when anything has reached its final form, and both Islam and Judaism are continually refining themselves.”
    Yes, and I guess even for an agnostic like me, that is the hope that religions may come around to the same basic understandings through that kind of evolutionary refinement. In Islam the process is called “ijtihaad” and I am sorry I forgot the name of the similar concept in rabbinical scholarship. And I am glad to see that you point out the continuity of legal principles from prehistoric times, to the “founding documents” of the major bronze-age empires (assyrians, babylonians, medians and aryans [original persians] etc.) and finally the “people of the book”, primarily the Abrahamic faiths.

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