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Daryl Renard Atkins

York County, Virginia

Scheduled Execution Date: Atkins was found mentally competent by a Virginia jury on Friday 5 August, 2005. A judge immediately scheduled his execution for December 2, 2005.
Date of Offense: August 17, 1996
DOB: 1978
18 at time of offense
Race: Black
IQ: 59

In June, 2002 in Atkins v. Virginia, the United States Supreme Court found the execution of persons with mental retardation to be unconstitutional. Mr. Atkins still sits on death row in Virginia. It was for a jury to decide if he was indeed mentally retarded and thus not able to be executed. Recently, defence attorneys failed to convince a jury that Daryl Atkins was mentally retarded. The attorneys are planning to appeal.

Case Overview

On the night of August 16, 1996, Daryl Atkins and William Jones went to a convenience store to buy beer. Atkins was, at that time, in possession of a firearm that was concealed behind his belt. He asked several people around the store for money. Eric Nesbitt, a 21-year-old airman stationed at Langley Air Force Base, entered the store and had a short conversation with Atkins. Upon exiting the store, Atkins and Jones forced themselves into Nesbitt's truck. Atkins instructed Nesbitt to give him money from his wallet and then forced him to withdraw money from an automatic teller machine. Atkins and Jones took Nesbitt to a deserted field in Yorktown and shot him eight times.

Atkins has presented testimony that his overall IQ is 59, his verbal being 64 and his performance IQ 60. Based on these scores, the forensic psychologist for the defense, Dr. Evan Nelson, has stated that Atkins falls in the range of being "mildly mentally retarded." Persons with an IQ of 59 have the cognitive ability of a child between 9 and 12 years of age. Nelson testified that Atkins did understand the criminal nature of his conduct and that he meets the general criteria for the diagnosis of an antisocial personality disorder.

Doctors for both the prosecution and defense agreed that mental retardation is based upon a combination of IQ and adaptive behavior. As asserted by the American Association on Mental Retardation, an individual is considered to have mental retardation based on the following three criteria: intellectual functioning (IQ) level below 70-75; significant limitations exists in two or more adaptive skill areas; and the condition is present from childhood, which is defined as age 18 or less. (AAMR, 1992). Dr. Nelson testified that Atkins had a limited capacity for adaptive behavior. He pointed to his school records, which showed that he scored below the 20th percentile in almost every standardized test he took. He failed the 2nd and 10th grades. In high school, Atkins was placed in lower-level classes for slow learners and classes with intensive instruction for remedial deficits. His grade point average in high school was 1.26 out of a possible 4.0. Atkins did not graduate from high school. Dr. Nelson testified that Atkins' academic records "are crystal clear that he has been an academic failure since the very beginning." Dr. Samenow for the prosecution did not evaluate Atkins' academic records or anyone who had observed him prior to his incarceration.

On June 20, 2002, the U.S. Supreme Court held in Atkins v. Virginia that the execution of persons with mental retardation was in fact unconstitutional Click here for the full Opinion on Atkins v. Virginia. For summary and implications of the Atkins decision click here


In Penry v. Lynaugh in 1989 ( 492 US 584), the US Supreme Court held that the execution of persons with mental retardation was not in violation of the Eight Amendment, instead mental retardation would be seen as a mitigating factor. In 2002, the Supreme Court again visited the issue of capital punishment and mental retardation, this time the Court held in Atkins v. Virginia (For summary and implications of the Atkins decision click here) that the execution of persons with mental retardation was in fact unconstitutional. This landmark ruling reflects a growing recognition and consensus that those with mental retardation simply do not possess the requisite degree of culpability and consequently, a sentence of death is contrary to the principle of proportionality. A person with mental retardation cannot fully appreciate the consequence of their actions or comprehend the punishment that awaits them. Often men and women with mental retardation lack the capacity to understand abstract concepts including those of death, waiving of rights, particularly in regard to Miranda, and the right against self-incrimination, more commonly known as the right to silence. The implications of this permeate every aspect of their participation within the criminal justice procedure to the effect that they lack the capacity to fully assist counsel in their own defense.

The Atkins v. Virginia ruling ostensibly prevents the execution of those persons with mental retardation. However upon closer scrutiny the decision has profound limitations; Inherent within this decision are a number of problems, one of the most significant lies in the determination of the person as mentally retarded. Whilst stating that such executions are unconstitutional, the Court did not expound upon the definition of mental retardation. Instead the Court left this decision to the individual states and thus in the vast majority of cases the jury to decide.

The case of John Paul Penry exemplifies the limitations of this decision. Just two weeks after the decision in Atkins, John Paul Penry was sentenced to death for the third time despite being consistently assessed from the age of six as having mental retardation and an IQ of 50-63. The Texan judge and jury concluded that Penry was not learning disabled. The concept of mental retardation is both illusory and elusive: juries have proven to be reluctant to accept that the accused has mental retardation, instead believing it to be easily faked. Indeed, despite clear evidence to the contrary a juror in Penry's re-sentencing hearing stated that to him it was obvious Penry was faking his mental retardation.

This belief is further echoed within the dissent of Justice Scalia in Atkins who stated that mental retardation could be "feigned," and the enhanced risk of wrongful execution was "laughable."

The exact number of people with mental retardation facing death sentences or languishing on death row is unknown due to the very nature of the disability: Identifying and qualifying mental retardation is exceedingly difficult for a variety of reasons. Whilst the decision in Atkins is welcome, the problems associated with the interaction of law and mental disabilities have not yet been resolved.