ATKINS V. VIRGINIA
In a landmark 6–3 ruling, the U.S. Supreme
Court barred the execution of mentally retarded
people, ruling that it constituted “cruel and
unusual punishment” prohibited by the EIGHTH
AMENDMENT. However, the Court left to the
states to determine the definition of mental
retardation. The decision affected as many as
300 mentally retarded death row inmates in 20
states.
The case involved Daryl Renard Atkins, who
was convicted of capital murder and sentenced
to death for abducting, robbing, and killing 21-
year-old airman, Eric Michael Nesbitt. The evi-
dence introduced at trial showed that at approx-
imately midnight on August 16, 1996, Atkins
and William Jones, both armed with semiauto-
matic weapons, abducted Nesbitt, robbed him,
drove him to an automated teller machine,
forced him to withdraw additional cash, and
then took him to an isolated location where they
shot him eight times at close range.
Initially, both Jones and Atkins were indicted
for capital murder. The prosecution ultimately
permitted Jones to plead guilty to first-degree
murder in exchange for his testimony against
Atkins.As a result of the plea, Jones became inel-
igible to receive the death penalty.
Jones and Atkins both testified in the guilt
phase of Atkins’s trial. Each confirmed most of
the details in the other’s account of the incident,
except that each blamed the other for killing
Nesbitt. Jones’s testimony, which was both more
coherent and credible than Atkins’s testimony,
was apparently credited by the jury in establish-
ing Atkins’s guilt. Highly damaging to the credi-
bility of Atkins’s testimony was its substantial
inconsistency with the statement he gave to the
police upon his arrest. Jones, in contrast, had
declined to make an initial statement to the
authorities.
At the penalty phase of the trial, the state
introduced victim impact evidence and proved
two aggravating circumstances: future danger-
ousness and “vileness of the offense.” To prove
future dangerousness, the state relied on Atkins’s
prior felony convictions as well as the testimony
of four victims of earlier robberies and assaults.
To prove the second aggravating circumstance,
the prosecution relied upon pictures of the mur-
dered man’s body and the autopsy report.
The defense relied on one witness during the
penalty phase, Dr. Evan Nelson, a forensic psy-
chologist who had evaluated Atkins before trial
and concluded that he was “mildly mentally
retarded.” His conclusion was based on inter-
views with people who knew Atkins, a review of
school and court records, and the administra-
tion of a standard intelligence test, which indi-
cated that Atkins had a full scale IQ of 59.
Generally, IQs below 70 are considered in the
retarded range. The state presented Dr. Stanton
Samenow as an expert rebuttal witness. He testi-
fied that Atkins was not mentally retarded but
rather was of “average intelligence, at least,” and
diagnosable as having antisocial personality disorder.
A jury sentenced Atkins to death and the Virginia Supreme Court affirmed the sentence
on appeal, saying it was “not willing to commute
Atkins’s sentence of death to life imprisonment
merely because of his IQ score.” Atkins v. Commonwealth,
260 Va. 375, 534 S.E.2d 312 (Va.
2000).
When the case was appealed, most observers
expected the U.S. Supreme Court to affirm the
sentence as well. In 1989 the Supreme Court had
upheld the execution of a mentally retarded
death row inmate, notwithstanding objections
that such executions violate the Eighth Amendment’s
ban on CRUEL AND UNUSUAL PUNISHMENT.
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct.
2934, 106 L.Ed.2d 256 (1989). But Justice JOHN
PAUL STEVENS, writing for the majority in
Atkins, concluded that times had changed in the
thirteen years since the Penry decision was
handed down.
When Penry was decided, Stevens observed,
only two of the 38 states allowing CAPITAL PUNISHMENT
barred execution of mentally retarded
inmates. However, at the time Atkins came
before the Court, that number had risen to 18.
Noting the “procession” of states in which executing
the mentally retarded had been deemed
illegal, Justice Stevens stated that it was not so
much the number of states that was significant,
but the consistency of the direction of change.
“Given the well-known fact that anti-crime legislation
is far more popular than legislation providing
protections for persons guilty of violent
crime,” he stated, “the large number of states
prohibiting the execution of mentally retarded
persons (and the complete absence of states
passing legislation reinstating the power to conduct
such executions) provides powerful evidence
that today our society views mentally
retarded offenders as categorically less culpable
than the average criminal.” Thus, Stevens concluded
that the Eighth Amendment now prohibited
executing mentally retarded persons under
the “evolving standards of decency” test by
which punishments are evaluated to determine
whether they are cruel and unusual.
Chief Justice WILLIAM REHNQUIST and Justices
ANTONIN SCALIA and CLARENCE THOMAS
dissented. Chief Justice Rehnquist criticized the
majority for basing its decision on the fact that
18 states have laws barring execution of mentally
retarded defendants, since the laws of 20 states
would have otherwise continued to leave the
question of proper punishment to the individuated
consideration of sentencing judges or juries
familiar with the particular offender and his or
her crime. Chief Justice Rehnquist agreed with
Justice Scalia’s opinion that the majority’s
assessment of the current legislative judgment
more resembled a post hoc rationalization for
the majority’s “subjectively preferred result”
than “any objective effort to ascertain the content
of an evolving standard of decency.”
FURTHER READINGS
Dowling, Alexis Krulish. 2003. “Post-Atkins Problems with
Enforcing the Supreme Court’s Ban on Executing the
Mentally Retarded.” Seton Hall Law Review 33 (summer):
773–810.
Henshaw, Jaime L. 2003. “The Court’s Failure to Recognize
What Lies Beneath.” Univ. of Richmond Law Review 37
(May): 1185–1221.
“Implementing Atkins.” 2003. Harvard Law Review 116
(June): 2565–87.
Velasquez, Eli. 2003. “The Shaping of an American Consensus
against the Execution of Mentally Retarded Criminals.”
Whittier Law Review 24 (summer): 955–83.
CROSS-REFERENCES
Eighth Amendment; Felony; Forensic Science; Murder; Plea;
Rebut; Victims of Crime.
