- The Washington Times - Tuesday, June 25, 2002

RICHMOND (AP) A legislative subcommittee will examine a U.S. Supreme Court decision that makes it unconstitutional to execute mentally retarded killers, a ruling the attorney general expects will trigger a rash of appeals.

"I can believe there are people waking up on death row and saying, 'Good morning, I am mentally retarded today,'" said Tim Murtaugh, a spokesman for Attorney General Jerry W. Kilgore. "A cynic would say that a flood of appeals based on IQ scores is imminent."

The Supreme Court ruled Thursday in the case of a Virginia man, Daryl Atkins, who robbed and killed a Langley Air Force Base airman in 1996. Atkins has an IQ of 59, his attorneys say, and a record that includes 20 felony convictions.

The court said in a 6-3 decision that executing the mentally retarded violated the Constitution's Eighth Amendment protection against cruel and unusual punishment.

The justices returned the case to the Virginia Supreme Court, which could send it back to York County or convert Atkins' death sentence to life in prison.

State prison officials have said they don't know how many of the two dozen men on Virginia's death row could be classified as mentally retarded.

Virginia lawmakers are prepared to draw up legislation that will direct state courts on the issue.

Delegate Robert F. McDonnell, Virginia Beach Republican, told the Virginian-Pilot of Norfolk that a subcommittee of the House Courts of Justice Committee will be appointed to study the issue and offer recommendations to the General Assembly. The subcommittee is expected to begin its work by September.

"The big battle is going to be over what is the proper definition of mental retardation," Mr. McDonnell said. "It must be legally sound and not subject to abuse."

While Mr. Kilgore's office suggested appeals would be based on false assertions of mental retardation, a University of Virginia law professor said that would not be easy to do.

"You do not suddenly become retarded," said Richard Bonnie, director of the Institute of Law, Psychiatry and Public Policy. "If there is no track record, that is virtually impossible."

Mr. Bonnie bases his opinion on the experiences of the 18 states that have had laws on the books some for more than a decade prohibiting execution of the mentally retarded. Those states have not reported any difficulty in making the determination, he said.

"The question is: Do we have to worry about manufactured evidence?" Mr. Bonnie asked. "The answer is: No, because it is likely that in a large majority of situations there will be historical evidence of mental retardation."

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