by TChris

When the Supreme Court banned executions of the mentally retarded in 2002, that should have been good news for Daryl Atkins. It was his case, after all, in which the Court ruled. But unsettled questions in the case have made it possible for the State of Virginia to continue its effort to impose the death penalty on Atkins.

The core issue in Atkins' case is whether Atkins is retarded. That should seem self-evident in light of Atkins' IQ of 59. But the prosecutor in Atkins' case has a novel theory: Atkins cannot be mentally retarded because the "truly mentally retarded" do not "commit these kinds of crimes."

Although some states have enacted statutes creating an objective standard -- prohibiting the execution of a defendant who has an IQ below 70 or 75 -- Virginia has enacted no standards. In Atkins' case, a jury will decide whether Atkins is retarded. The prosecution wants the jury to base its decision on the nature of Atkins' crime as well as his ability to recognize polysyllabic words and perform some basic tasks. The attempt to play to the jury's sympathy is transparent: by focusing on the facts of the murder rather than Atkins' IQ, the prosecutor hopes to distract the jury from the central question of Atkins' retardation.

The judge in Atkins' case has not yet decided what evidence the jury will be allowed to hear.