Inmate at center of ruling on retarded could still be executed

ROANOKE, Va. -- The Virginia inmate whose case persuaded the U.S. Supreme Court to bar the execution of mentally retarded killers remains on death row more than a year later, and prosecutors are determined to see him die.

Daryl Renard Atkins, who has been reported to have an IQ of 59, might not even benefit from the landmark ruling that bears his name.

Atkins still must prove in state court that he is retarded before he can leave death row and get a life sentence. Prosecutor Eileen M. Addison said she will make that as difficult as possible.

"They have an expert who believes he is retarded and we have an expert who says he's not," Addison said. A jury will decide in a proceeding set to begin on March 29.

While the high court's ruling in June 2002 protected the severely mentally retarded, it provided little guidance for the far greater number of inmates like Atkins who are borderline cases.

"Virtually every mentally retarded person who has enough capacity to get in serious legal trouble is going to be at the upper end" of the IQ scale, said David Bruck with the Federal Death Penalty Resource Counsel Project in South Carolina.

While noting that 1 percent to 3 percent of the population could be considered retarded, the high court left it to states to determine which of the 3,504 death row inmates in America fall into that category.

When drawing the line between inmates with low intelligence and those who are retarded, states have disagreed, making it easier to get off death row in some states and harder in others.

According to the Death Penalty Information Center, Florida requires inmates to show below-average intelligence at some point by age 18. But in Indiana, inmates need show it before age 22. And while several states say an IQ of 70 or below constitutes retardation, Arkansas says an IQ of 65 is strong evidence of retardation.

"There really is variation right now because the states have not had much guidance on how to deal with this," said Richard Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia.

It will probably take years, maybe decades, of litigation before some kind of national standard is developed and the criminal justice system agrees on what kinds of records inmates would have to produce and what kind of tests they would have to undergo, he said.

Atkins, 26, was sentenced to death for shooting a Langley Air Force Base enlisted man for beer money in 1996. Atkins' accomplice, William A. Jones, testified against him and received a life sentence. After hearing the Atkins case, the U.S. Supreme Court ruled it was unconstitutionally cruel to execute the mentally retarded.

Since then, dozens of inmates have appealed their death sentences based on the Atkins decision, said Richard Dieter, executive director of the Death Penalty Information Center in Washington.

Nevada inmate Thomas Nevius had his death sentence reduced to two life terms without parole last year. Many others have delayed their execution dates to make time for additional mental evaluations, Dieter said.

In Virginia, however, triple killer Percy Walton failed to get off death row despite recent IQ scores as low as 66. Walton, who according to his lawyers has a degenerative mental condition, failed to show retardation at the onset of adulthood, as required by Virginia law.

"He may well be retarded, but it doesn't fall in line with the Atkins decision," said his lawyer, Nash Bilisoly.

Texas prosecutor Rodney Connerly also is trying to keep the state's longest-serving death row inmate headed for execution, even though Walter Bell Jr. has scored around 70 on IQ tests.

Connerly said Bell killed Ferd and Irene Chisum of Port Arthur in a way that was too sophisticated for someone mentally retarded.

"Mr. Bell had a photo ID made up with a false name. He had the end of an extension cord to tie them up. He went to their house and killed both of them -- had Mrs. Chisum write him checks under a false name," the prosecutor said.

Atkins' lawyer, George Rogers III, said he hopes Atkins will benefit from the Supreme Court ruling that bears his name, but it could be a fight.

"We're in virgin territory on this," Rogers said. "We understand what the law says, but the step-by-step process is one that is basically breaking new ground."