DAILY PRESS

February 21

National consensus may decide Atkins' fate

By David Lerman

WASHINGTON -- An attorney for convicted Hampton murderer Daryl Atkins urged the U.S. Supreme Court on Wednesday to prohibit the execution of the mentally retarded, saying a national consensus has emerged that the practice amounts to cruel and unusual punishment.

 In a case pitting advocates for the mentally retarded against conservative death-penalty supporters, the high court is weighing whether public opinion toward such executions has shifted since a 1989 decision upholding the practice.

 That decision, reached on a 5-4 vote, found "insufficient evidence of a national consensus" that such executions amounted to cruel and unusual punishment, prohibited under the Eighth Amendment.

 Since then, however, the number of states with laws banning such executions has risen from two to 18, the Death Penalty Information Center says.

 "People have reached a judgment," said James W. Ellis, Atkins' attorney.

 When the mentally retarded are tried in death-penalty cases, Ellis said, "It increases the likelihood of wrongful conviction and wrongful execution."

 But Assistant Attorney General Pamela A. Rumpz, representing the state of Virginia, said there was still no evidence of a national consensus on the issue. A majority of the states that have the death penalty, she said, continue to allow for the execution of the mentally retarded who are found competent to stand trial.

 "A national consensus has to be broad, clear and enduring," Rumpz said.

 At stake in the case is the life of Atkins, who's been on Virginia's death row since 1998 for the 1996 abduction and murder of Eric Nesbitt, a 21-year-old airman stationed at Langley Air Force Base.

 A mental-health expert selected by Atkins' attorneys argued that the Hampton resident was mildly retarded, with an IQ of 59. State prosecutors offered their own expert, who argued that Atkins wasn't retarded. Atkins, now 23, was never diagnosed as retarded until his murder trial, they said.

 If the Supreme Court rules in Atkins' favor, Justice Ruth Bader Ginsburg suggested -- through her questioning -- that the case might need to be remanded to state courts to determine whether Atkins was, in fact, mentally retarded.

 During an hourlong hearing, justices appeared divided on whether a clear public attitude toward executing the mentally retarded had emerged.

 "We've got to be very careful about a national consensus before we rush to judgment," said Justice Antonin Scalia, one of the high court's most conservative members.

 If such executions are ruled unconstitutional, Scalia said, "We will never be able to go back."

 But Justice David H. Souter likened the death-penalty exemption sought for the mentally retarded to that provided to children.

 "There ought to be a cutoff point," Souter said. "The reason to have a cutoff is to avoid those high-risk cases."

 Rumpz, the state's attorney, dismissed the flurry of legislative activity across the country keeping the mentally retarded off death row.

 "That's a blip on the radar screen, a pendulum swing," Rumpz said.

 "That's a pendulum swing, but it's all in the same direction," Justice John Paul Stevens shot back.

 In Richmond, the state Senate passed a bill earlier this month that would ban executions of the mentally retarded. But a House committee killed the measure, saying it didn't want to pre-empt a court decision.

 Nationwide, there are more than 3,700 people on death row, though the number of mentally retarded among them is unknown.

 Among those attending the hearing Wednesday were Sen. Edward M. Kennedy, D-Mass., and his sister, Eunice Kennedy Shriver. She's the founder of the Special Olympics, the world's largest forum for athletic competition for the mentally retarded.

 The case that reached the nation's highest court Wednesday stems from a grisly night in Hampton Roads in August 1996. Atkins and an accomplice, William A. Jones, abducted Nesbitt, the Langley airman, outside a Hampton convenience store. The two forced Nesbitt to withdraw money from an automated teller machine and then drove the victim to a deserted road in York County, where he was shot eight times. The murder weapon was never recovered.

 Atkins said Jones was the trigger man, but state prosecutors said the evidence pointed to Atkins.

 Jones pleaded guilty and testified against Atkins in exchange for a lighter sentence.

 A decision in the case, Atkins v. Virginia, is expected by summer.

 David Lerman can be reached at (202) 824-8224 or by e-mail at [email protected]

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