Virginia Governor Terry McAuliffe com­mut­ed the sen­tence of men­tal­ly incom­pe­tent death-row pris­on­er William Joseph Burns (pic­tured) on December 29, 2017, after mul­ti­ple men­tal-health experts said Burns was unlike­ly to regain suf­fi­cient com­pe­ten­cy for his death sen­tence to ever be car­ried out. Burns, whose sen­tence was con­vert­ed to life in prison with­out the pos­si­bil­i­ty of parole, became the fifth death-row pris­on­er to have been grant­ed clemen­cy in the United States in 2017. Burns was con­vict­ed and sen­tenced to death for the 1998 rape and mur­der of his moth­er-in-law. Showing signs of severe men­tal ill­ness, Burns was found incom­pe­tent to stand tri­al in 1999, delay­ing his tri­al for a year. At tri­al, his lawyers pre­sent­ed mit­i­gat­ing evi­dence that Burns had men­tal retar­da­tion (now known as intel­lec­tu­al dis­abil­i­ty), but the jury returned a death ver­dict. The Virginia Supreme Court upheld the con­vic­tion and sen­tence in 2001, but in 2002, the U.S. Supreme Court declared that the use of the death penal­ty against peo­ple with men­tal retar­da­tion vio­lat­ed the Eighth Amendment. In 2005, the Virginia Supreme Court ruled that Burns had pre­sent­ed suf­fi­cient evi­dence of intel­lec­tu­al dis­abil­i­ty to war­rant a tri­al on that issue. However, Burns exhib­it­ed con­tin­u­ing signs of severe men­tal ill­ness and a court-appoint­ed men­tal-health expert deter­mined that he was active­ly psy­chot­ic, spawn­ing more than a decade of lit­i­ga­tion over his com­pe­ten­cy to stand tri­al. In issu­ing the com­mu­ta­tion, McAuliffe wrote that the ​“con­tin­ued pur­suit of the exe­cu­tion of Mr. Burns, both as a mat­ter of con­sti­tu­tion­al prin­ci­ple and legal prac­ti­cal­i­ty, can­not be jus­ti­fied.” McAuliffe not­ed that Virginia has already spent more than $350,000 in ​“treat­ing, trans­fer­ring, mon­i­tor­ing, and lit­i­gat­ing whether Mr. Burns has the men­tal com­pe­tence to con­duct a tri­al on whether he has the intel­lec­tu­al capac­i­ty to be exe­cut­ed” and men­tal-health experts ​“have con­firmed that Mr. Burns is not like­ly to be restored to com­pe­tence. … As of now,” the Governor said, ​“there is no law­ful way to impose the death sen­tence on Mr. Burns, and there is no clear path for that ever being pos­si­ble.” The com­mu­ta­tion, McAuliffe said, ​“brings final­i­ty to these legal pro­ceed­ings; it assures the victim’s fam­i­ly that Mr. Burns will nev­er again enjoy free­dom, but with­out the tor­ment of post-tri­al lit­i­ga­tion; and it allows the Commonwealth to devote its resources towards oth­er cas­es. In my view, this is the only just and rea­son­able course.” Virginia gov­er­nors have com­mut­ed ten death sen­tences since the Commonwealth rein­stat­ed its death penal­ty in October 1975. In 2000, fol­low­ing DNA test­ing that proved his inno­cence, Governor Jim Gillmore grant­ed an absolute par­don to Earl Washington. Most recent­ly, Governor McAuliffe com­mut­ed the death sen­tence of Ivan Teleguz five days before his sched­uled April 25, 2017 exe­cu­tion, not­ing that the pros­e­cu­tion’s use of false evi­dence to influ­ence the jury’s sen­tenc­ing deter­mi­na­tion result­ed in a death ver­dict that ​“was ter­ri­bly flawed and unfair.”

(Andrew Cain, McAuliffe com­mutes death sen­tence of killer found men­tal­ly incom­pe­tent to be exe­cut­ed, Richmond Times-Dispatch, December 29, 2017; Virginia gov­er­nor com­mutes death sen­tence in 1998 slay­ing, Associated Press, December 29, 2017; Death sen­tence com­mut­ed for man con­vict­ed of 1998 cap­i­tal mur­der, NewsPlex​.com, December 29, 2017; Press Release, Governor McAuliffe Commutes Sentence of Man Found Mentally Incompetent to Be Executed, Office of Governor Terry McAuliffe, December 29, 2017.) See Clemency and Mental Illness.

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