Washington Post
September 26, 2001
Justices to Hear Appeal Of Virginia Execution
By Charles Lane
The Supreme Court said yesterday it will hear the appeal of a convicted murderer from Virginia, Daryl R. Atkins, whose lawyers contend the state's planned execution of him would be unconstitutional because he is mentally retarded.
Earlier this year, the court had announced that it would use a North Carolina case to reconsider its 1989 ruling upholding executions of the retarded. But North Carolina's legislature recently decided to ban executions of the retarded, prompting the justices to dismiss that case in a separate action yesterday.
The court's ruling is bound to be one of its most significant decisions this session, and will turn on whether a majority of the justices finds that a national consensus against executing the mentally retarded has emerged since the court upheld the practice in 1989. At that time, the court, in an opinion by Justice Sandra Day O'Connor, said the best evidence of a national consensus that the punishment was "cruel and unusual" would come from the laws passed by state legislatures.
Atkins's attorney, Robert E. Lee, says that recent trends in death penalty legislation confirm that such a consensus does exist.
Of the 38 states that permit capital punishment, 20, including Virginia, allow executions of the mentally retarded, who are generally defined as persons with IQs lower than 70. But 18 death penalty states forbid such executions, a ninefold increase since 1989.
Twelve states and the District have no capital punishment.
Atkins, 23, has been on death row since 1998 for the 1996 abduction and murder of Eric Nesbitt, a U.S. airman assigned to Langley Air Force Base in Hampton, Va.
Atkins and co-defendant William A. Jones grabbed Nesbitt outside a York County convenience store and forced him to withdraw money from an ATM; Nesbitt was subsequently shot eight times and died. The murder weapon was never recovered.
A mental health expert appointed by attorneys for Atkins said he has an IQ of 59. Atkins had never lived on his own or held a job.
Atkins offered police a detailed confession when he was arrested. The Virginia attorney general's office said he was intelligent enough to understand and plan a crime.
The Virginia Supreme Court split 5 to 2 on the issue, with two justices saying Atkins's sentence should be commuted to life without parole.
In recent months, members of the U.S. Supreme Court have expressed public concerns about the way capital punishment is administered. Among the justices to speak out was O'Connor, who told a Minnesota audience in June that "the system may well be allowing some innocent defendants to be executed."
The high court has been particularly interested in Virginia cases recently. Including the Atkins case, the justices have agreed to hear eight cases from Virginia in the past three years, ruling for the inmate in three of the six cases that have been decided so far.
The justices also have agreed to decide this term whether Virginia death row inmate Walter Mickens was denied a fair trial because his court-appointed attorney had been representing the victim in the case at the time of the killing.
Partly as a result of increased scrutiny from both federal and state courts, executions have all but stopped in Virginia. The commonwealth has executed one person this year, with one more execution scheduled -- down from eight executions last year and 14 in 1999.
Atkins's first death sentence was overturned in 1999 because of a problem with the jury's verdict form, but he was sentenced to death a second time.
He was convicted in a trial at which the most sensational testimony against him came from Jones, who pleaded guilty in return for a life sentence. As part of the plea agreement, Jones told the jury that Atkins had been the triggerman in the murder, which Atkins has always disputed.
The case is Atkins v. Virginia, No. 00-8452.
Staff writer Brooke A. Masters contributed to this report.
Copyright © 2001, Washington Post Company. All rights reserved.
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