The Virginian-Pilot

VIRGINIA: Panel rejects ban on executing mentally retarded

In Richmond, a House of Delegates panel late Friday night rejected a ban on executions for mentally retarded death row prisoners, despite the full Senate's earlier unanimous approval of the ban.

 The House Courts of Justice Committee's action likely kills the measure, halting some lawmakers' aspiration to make Virginia among the growing number of states with such a ban.

 A Republican Virginia Beach delegate, Robert McDonnell, who voted against the ban called it "one of the most difficult cases we've heard this year."

 Nationally, several states are reconsidering capital punishment for mentally retarded inmates. 18 states ban such punishment, an increase from 2 in 1999.

 The issue has sparked debate throughout the country as states gain more experience with the death penalty. Later this month, the U.S. Supreme Court is scheduled to review the case of Daryl Atkins, a Virginia man on death row with an IQ under 70.

 "There's a growing awareness of not subjecting mentally retarded people to the death penalty," said Sen. John S. Edwards, the bill's sponsor. "It's a matter of basic humanity."

 Under 2 similar proposals, Virginia would allow judges to decide whether a person facing a death sentence is mentally retarded. If the judge finds clear and convincing evidence to support the claim, the accused would face life in prison.

 The Senate passed the bill Friday unanimously and without debate. Edwards' bill, SB497, would allow persons accused of capital crimes to petition the court for a pre-trial hearing to determine mental retardation. The measure has a provision that delays its enactment until July 2003.

 A judge would have to find clear and convincing evidence to rule that a defendant is mentally retarded. The defendant must be shown to have an IQ lower than 70, and have substantially limited adaptive and learning skills. The definition is drawn from the standard psychiatric definition of mental retardation.

 The House version, HB957, allows the court to appoint two psychiatric experts to determine the defendant's condition. The experts' testimony must prove clearly and convincingly the defendant is mentally retarded.

 If the judge is convinced, the defendant would be sentenced to life in prison. The House version does not allow inmates on death row to raise the issue.

 Under the Senate bill, prisoners on Virginia's death row would have a 120-day window to seek a hearing on mental retardation. Edwards said he believes only Aktins' case would be affected.

 Atkins and a friend abducted a young airman stationed at Langley Air Force base at gunpoint on an August night in 1996. The pair robbed the airman, then drove him out to a deserted field in Yorktown and shot him several times. Atkins was convicted of the murder.

 The U.S. Supreme Court will consider whether executing Atkins would violate the 8th Amendment's prohibition on cruel and unusual punishment.

 The court ruled in 1989 that executing the mentally retarded does not violate the Constitution. A split court said the issue should be considered during sentencing, and that a national consensus had not been formed.

 In Richmond, advocates for the mentally retarded claim the criminal justice system is fraught with unique difficulties for their clients.

 "They should receive punishment, but not the ultimate punishment," said Teja Stokes, executive director of the Arc of Virginia. The group advocates for more than 1,400 mentally retarded and developmentally disabled persons and their families in Virginia.

Stokes said mentally retarded persons are more likely to become confused during police interrogations and unwittingly give false or inaccurate testimony to please their interrogators.

 Stokes, who has worked with developmentally disabled adults for more than 10 years, said it was impossible for a person to fake mental retardation.

 Del. Jerrauld Jones, D-Norfolk, voted for the ban and said lawmakers would continue to grapple with the issue.

"It's far from over," he said.