Retardation Debate to Set Killer's Fate

Va. Court, Lawmakers Working on Standards

 By Maria Glod

Before Daryl Renard Atkins was sent to Virginia's death row, he wasn't able to live on his own and had trouble doing laundry and preparing meals, his attorneys said. They contend he is mentally retarded and cannot be executed by the state.

 But Virginia officials said Atkins knows that John F. Kennedy was president in 1961 and can correctly use the words "decimal," "orchestra" and "parable." They believe that Atkins knew he was doing wrong when he fatally shot a U.S. airman in 1996 and that death row is where he belongs.

 Atkins's case last year led to the landmark U.S. Supreme Court decision abolishing the death penalty for mentally retarded offenders. But Atkins has remained in a legal limbo because the high court didn't define mental retardation and left it to the states to determine the standards.

 In Virginia, that process began this week, and the state Supreme Court considered arguments in Atkins's case yesterday. State lawmakers also are taking up the issue, and on Wednesday, members of the State Crime Commission introduced a bill proposing criteria for determining whether a defendant is retarded.

 Virginia Assistant Attorney General Robert Q. Harris asked the court yesterday to delay action on Atkins's case until lawmakers have crafted legislation. He said the court would find it difficult to decide Atkins's fate because Virginia has "no controlling legal definition" of mental retardation.

 "That's a matter of policy the General Assembly will have to decide," Harris told the court. "I recommend . . . we take a prudent course and we see what we have to work with when the General Assembly is done."

 But one of Atkins's attorneys, Robert Lee, said his client, who has an IQ of 59, would be considered mentally retarded under accepted clinical standards and asked the court to set aside the death sentence and order that Atkins serve a life term in prison.

"There is no definition of mental retardation consistent with the Atkins decision which Daryl Atkins would fail to meet," Lee said. "Daryl Atkins is mentally retarded."

 Harris said the court should not rely on IQ tests alone in Atkins's case. "Maybe his intellect is truly reflected in that test. Maybe it is not," Harris said.

 Atkins, 23, has been on death row since 1998 for the 1996 kidnapping and killing of Eric Nesbitt, a U.S. airman assigned to Langley Air Force Base in Hampton.

 According to court documents, Atkins and a friend, William A. Jones, were out after a day of drinking when they spotted Nesbitt outside a convenience store. Atkins and Jones abducted Nesbitt at gunpoint, forced him to withdraw $200 from a bank machine and then drove him to a field and shot him eight times.

 Atkins was convicted of capital murder, and two separate juries later voted to impose a death sentence.

 James W. Ellis, a professor of law at the University of New Mexico who studies capital punishment, said the situation in Virginia is being repeated in the other 19 states that had allowed execution of the retarded.

 State supreme courts in Ohio, Louisiana and Oklahoma have set up procedures for judging mental retardation, said Ellis, who argued the Atkins case before the U.S. Supreme Court. In other states, including Texas, legislators are tackling the issue.

 Although the legal definition of retardation varies slightly from state to state, most require an IQ under 70 and evidence that the person has difficulty navigating daily life.

 The Virginia bill introduced by Del. James F. Almand (D-Arlington) and other lawmakers would define retardation as a disability that begins before age 18 in which the person demonstrates "significantly subaverage intellectual functioning" on a standardized test and has trouble with social skills and daily activities. The bill does not specify an IQ score.

 Under the proposal, experts would use information including psychological tests, school and medical records and reports from the offender's parents to make an assessment. A judge or jury would then make a determination.

 "We decided that there is not one single test or one single figure that you could use," said Del. David B. Albo (R-Fairfax). Instead, he said, juries and judges would hear from mental health experts on a number of accepted measures and make a conclusion.

 Del. Brian J. Moran (D-Alexandria), another co-sponsor, said the legislation would rely on standards that are adopted by the mental health experts. "It's going to give us some conformity, and it's proven," Moran said. "If the national standard changes, then our legislation changes with it."

 Lee said he expects the court to make a decision at the end of its next session in February. The General Assembly session ends Feb. 22, and lawmakers can act at any time.

 Ellis said that while several inmates have made claims of mental retardation, prosecutors have not faced the widespread filing they initially predicted.

 "They have not found everyone on death row filing" and saying they are retarded, Ellis said. "They have not found a lot of frivolous claims."

� 2003 The Washington Post