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Daryl Renard ATKINS





Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: August 16, 1996
Date of birth: November 6, 1977
Victim profile: Eric Nesbitt, 21
Method of murder: Shooting
Location: York County, Virginia, USA
Status: Sentenced to death on February 14, 1998. Commuted to life on June 8, 2006
photo gallery

ATKINS V. VIRGINIA (00-8452) 536 U.S. 304 (2002)

260 Va. 375, 534 S. E. 2d 312, reversed and remanded

petition for writ of certiorari
transcript of oral arguments
syllabus opinion (stevens)
dissent (rehnquist) dissent (scalia)

On August 16, 1996, Daryl Atkins and William Jones spent most of the day drinking and smoking marijuana at the house Atkins shared with this father.

Later that evening, after Atkins borrowed a gun from a friend, he and Jones went to the convenience store to buy some more beer. Lacking money, Atkins started panhandling. At around 11:30 p.m., Eric Nesbitt went to the store.

When Nesbitt prepared to leave the parking lot in his truck, Atkins hijacked the truck at gunpoint. Jones drove, Atkins was a passenger, and Nesbitt was kept hostage. They stole $60 from Nesbitt's wallet, and after discovering Nesbitt's bank card, they proceeded to the branch of a local bank where Atkins forced Nesbitt to withdraw $200 from the drive-through ATM.

Jones then drove the truck to a local school where he and the defendant discussed what to do with Nesbitt. Jones urged that they just tie Nesbitt up and leave him. Instead, at Atkins' suggestion they drove to a secluded area that he knew. Atkins ordered Nesbitt out of the truck and shot Nesbitt to death. The autopsy showed that Nesbitt had eight different bullet wounds. The two were subsequently arrested.

Jones testified against Atkins, and Atkins was convicted of capital murder and sentenced to death. The Virginia Supreme Court affirmed the conviction, but reversed the sentence because of an improper sentencing verdict form.

At retrial, Dr. Evan Nelson, a forensic psychologist, testified that the defendant's full scale IQ of 59 meant that he was mildly mentally retarded. This diagnosis was also based upon the defendant's inability to function independently as compared to the average person.

Dr. Nelson also "admitted that Atkins' capacity to appreciate the criminal nature of his conduct was impaired, but not destroyed; that Atkins understood that it was wrong to shoot Nesbitt; and that Atkins meets the general criteria for the diagnosis of an antisocial personality disorder."

The jury also heard the testimony of the state's witness, Dr. Stanton Samenow, a forensic clinical psychologist. He " 'sharply disagreed' " with Dr. Nelson's diagnosis that the defendant was mildly retarded. He instead concluded that Atkins had at least average intelligence. This conclusion was based upon "Atkins' vocabulary, knowledge of current events, and other factors from the Wechsler Memory Scale, Wechsler Adult Intelligence Scale, and Thematic Appreciation Test."

As one example, Atkins knew that John F. Kennedy was president in 1961. He also knew who was the current governor of Virginia, as well as the last two presidents. The defendant was again sentenced to death. The Virginia Supreme Court affirmed.

The opinion analyzed Atkins' alleged retardation under its proportionality review, where it held that the death sentence was not rendered disproportionate due to the defendant's intelligence.


The convicted killer whose case prompted the U.S. Supreme Court to abolish the death penalty for the mentally retarded will not himself benefit, as a jury on Friday ruled he was not retarded. Daryl Atkins is the death row inmate whose case led to the Supreme Court’s ban on executing the mentally retarded.

Atkins was given a death sentence for the robbery and murder of 21-year-old Airman 1st Class Eric Nesbitt nine years ago. Atkins was 18 years old when he and accomplice William Jones killed Nesbitt for beer money. Nesbitt was abducted outside a convenience store and taken to an automatic teller machine where he forced to withdraw money. Nesbitt was then driven down a desolate road and shot eight times. Jones testified against Atkins and received a life sentence.

Three years ago the U.S. Supreme Court ruled in Atkins’ case that executing the mentally retarded is unconstitutional, but did not specify whether Atkins himself fit this category, and left it up to the states to determine whether inmates are retarded.

This week, Atkins was found mentally competent by a Virginia jury, and York County Circuit Court Judge Prentis Smiley Jr. immediately scheduled his execution for December 2. "It's ironic, but as a legal matter, this was always a possibility," said Robert D. Dinerstein, an American University law professor.

Jurors deliberated for 13 hours over a two day period before finding that Atkins was not mentally retarded and is therefore eligible for execution. During seven days of testimony, jurors -- whose sole task was to determine whether Atkins is mentally retarded -- did not learn details about the slaying of Eric Nesbitt, 21, or even hear his name.

Instead, they heard from psychologists who administered a battery of IQ and other tests and examined Atkins's school and prison records. They also relied on the testimony of family, friends and teachers who were asked to recall the most mundane details of Atkins's daily life. Was he able to cook chicken? Drive a car? Mow the lawn? Dress himself appropriately? Write rap lyrics?

For example, jurors learned that Atkins, when interrupted during a meal at prison, placed his soup bowl in a sink containing some hot water to keep it warm. Prosecutors portrayed it as a clever solution for a man with no access to a kitchen. But a defense expert countered that Atkins didn't seem to understand that the water soon would cool and that his fix was only temporary.

In Virginia, lawmakers have defined a mentally retarded offender as someone with an IQ below 70 who has "significant limitations in adaptive behavior" that were evident before age 18. Atkins has scored 59, 67, 74 and 76 on IQ tests, according to testimony.

Eileen Addison, the York County prosecutor, said she agreed with the decision regarding capital punishment and the mentally retarded but said that Atkins was “the wrong case”. Addison said, “We never disagreed that he was probably a slow learner. That’s not the same as being mentally retarded.” Atkins’ lawyers felt that they had established their client’s mental retardation. Atkins' attorney Richard Burr said, “People in this community rejected that. We don’t know why.” 

After the verdict, Atkins, now 27, flashed a peace sign and blew a kiss to his family as he was led from the courtroom. Testimony in the mental retardation case centered on Atkins’ mental capabilities and the crime was never brought into play.

The defense claimed that Atkins was so mentally challenged that he was cut from his high school football team because he couldn’t understand the plays, but the state blamed his problems in school on drugs and alcohol, and said the claim of mental retardation was a ploy to avoid execution. said the claim of mental retardation was a ploy to avoid execution. "None of his teachers, friends or family believed Daryl was mentally retarded until he was facing the death penalty," Addison said in her opening statement. Both sides called expert witnesses who disagreed on whether Atkins fell into the category of mentally retarded.

An IQ of 70 or lower by the age of 18 is required to be considered mentally retarded in Virginia, which also takes into account social skills and the ability to care for oneself. Atkins had scores of 59, 67, 74 and 76 on IQ tests, but they were given when he was older than 18.

Nesbitt’s family attended the trial, and his mother, Mary Sloan, leaned back after hearing the verdict, visibly relieved that her son's killer will return to death row. She declined to be interviewed outside the courthouse Friday. “It was distressing to them that we went through two weeks never mentioning their son’s name,” Addison said.

Atkins’ lawyers said they planned to appeal. York County's top prosecutor, Eileen M. Addison, who twice convinced other juries that Atkins deserved the death penalty, said she had never doubted that Atkins knew right from wrong.

Drug abuse, laziness and a bad attitude were to blame for Atkins's poor grades in school and problems in life, she indicated. "We've never disagreed that he is probably a slow learner and he is not of high intelligence, but that is not the same as mentally retarded," Addison said. "I do agree with the Supreme Court's decision, but this was the wrong case."

Lorraine Batchelor, who taught Atkins at an alternative school, said she saw a teenager who struggled because he came late to class and didn't try to complete his work. Batchelor testified that Atkins blamed drugs for his disinterest and that there was "no indication whatsoever that he was incapable." Although the jury learned nothing about Nesbitt's slaying, future juries will not work in a similar void.

Under Virginia law, defendants claiming mental retardation would go to trial, and, if convicted, the same jury would decide whether the defendants' claims were true. Defendants in Virginia must prove mental retardation by a preponderance of the evidence, a less-rigorous standard than that used to determine guilt.


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.


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 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.


Daryl Renard Atkins

Date of Birth: 11/6/77

Sex: Male

Race: Black 

Entered the Row: April 28, 1998

District: York County

Conviction: Capitol murder 

Virginia DOC Inmate Number: 255956

A jury convicted and recommended that Daryl Atkins be executed for the Aug. 16, 1996 murder of Eric Nesbitt on February 14, 1998

Atkins and his friend, William Jones, were drinking and smoking crack at Atkins's home when they decided to walk to a nearby store to buy more beer.  At the parking lot of the store, Atkins told Jones that he did not have enough money and would panhandle to get the money for the beer; instead, Atkins and Jones abducted Eric Nesbitt and drove him to a field where Atkins allegedly shot and killed him.

During the investigation of the crime, Atkins made a statement to police where he claimed that Jones was the triggerman.  However, at trial, the jury found Atkins guilty of capital murder. During sentencing, the jury found both the future dangerousness and the vileness aggravating factors.  

In direct appeal to the Supreme Court of Virginia, counsel for Atkins raised nineteen claims. Although the court found that most of the claims were either procedurally defaulted or without merit, on Feb. 26, 1999, the court held that the use of an incorrect jury verdict form constituted reversible error with respect to the imposition of the death penalty. The court then affirmed Atkins's capital murder conviction but overturned the death sentence and remanded the case to the trial court for a new penalty proceeding. 

During jury instructions at the penalty phase of the trial, prosecutors erred when they failed to disclose on the instruction form that absence of aggravating circumstances (future dangerousness AND vileness), the law REQUIRED that they sentence Adkins to life in prison without parole. 

After a three-day sentencing hearing, a different jury re-sentenced Atkins to death in August, 1999; and a little over a year later in a 2-1 decision, the Supreme Court of Virginia upheld Adkins’ conviction.  Defense was arguing that the circuit court once again erred because they denied Adkins the right to present his mental retardation as mitigating evidence during the second penalty phase trial. At the time of the crime, Adkins had an IQ of 59.

In March 2000, Atkins' lawyers petitioned the U.S. Supreme Court to hear the case on the basis of pretrial intelligence tests that showed Adkins was retarded.  In a 6-3 ruling, the Supreme Court remanded the Adkins case to the circuit court and ruled that executing mentally retarded felons was unconstitutional.  They left it up to Virginia to determine whether Atkins is retarded or not. Pursuant to the high court’s decision, the Virginia Supreme Court ruled in June 2003 that a new jury would decide Adkins fate.

On Aug. 5, 2005, jurors in York County decided that Adkins was not mentally retarded. Virginia law defines mental retardation as someone with a score below 70 on a standardized IQ tests before the age of 18.  Adkins was not tested before 18 and registered subsequent scores of 59, 74 and and 76.

On June 8, 2005, the Virginia Supreme Court threw out Atkins’s death sentence and ordered a new competency trial.  The jurors who ruled that Atkins was not mentally retarded at the second trial had been told that Atkins had earlier been sentenced to death.


Atkins v. Virginia, 536 U.S. 304 (2002), is a case in which the Supreme Court of the United States ruled 6-3, that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments.

The case

About 2 in the morning on August 16, 1996, following a day spent together drinking alcohol and smoking marijuana, Daryl Atkins and his accomplice, William Jones, drove to a convenience store where they abducted Eric Nesbitt, an airman from nearby Langley Air Force Base.

Unsatisfied with the $60 they found in his wallet, Atkins and Jones drove Nesbitt in his own vehicle to a nearby ATM and forced him to withdraw a further $200. In spite of Nesbitt's pleas, the two abductors then drove him to an isolated location, where he was shot eight times, killing him.

Footage of Atkins and Jones in the vehicle with Nesbitt was captured on the ATM's CCTV camera, and further forensic evidence implicating the two was found in Nesbitt's abandoned vehicle. The two suspects were quickly tracked down and arrested. In custody, each man claimed that the other had pulled the trigger. Atkins' version of the events, however, was found to contain a number of inconsistencies.

Doubts concerning Atkins's testimony were strengthened when a cell-mate claimed that Atkins had confessed to him that he had shot Nesbitt. A deal of life imprisonment was negotiated with Jones in return for his full testimony against Atkins. The jury decided that Jones's version of events was the more coherent and credible, and convicted Atkins of capital murder.

During the penalty phase of the trial, the defense presented Atkins's school records and the results of an IQ test carried out by clinical psychologist Dr. Evan Nelson, that placed his score at 59. On this basis they proposed that he was "mildly mentally retarded". Atkins was nevertheless sentenced to death.

On appeal, the Supreme Court of Virginia affirmed the conviction but reversed the sentence after finding that an improper sentencing verdict form had been used. At retrial, the prosecution proved two aggravating factors under Virginia law -- that Atkins posed a risk of "future dangerousness," based on a string of previous violent convictions, and that the offense was committed in a vile manner.

The state's witness, Dr Stanton Samenow, countered the defense's arguments that Atkins was mentally retarded, stating that Atkins's vocabulary, general knowledge and behavior suggested that he possessed at least average intelligence. As a result, Atkins's death sentence was upheld.

The Virginia Supreme Court subsequently affirmed the sentence based on a prior Supreme Court decision, Penry v. Lynaugh, 492 U.S. 302 (1989). Justice Cynthia D. Kinser authored the five-member majority. Justices Leroy Rountree Hassell, Sr. and Lawrence L. Koontz, Jr. each authored dissenting opinions and joined in each other's dissent.

Because of what it perceived to be a shift in the judgments of state legislatures as to whether the mentally retarded are appropriate candidates for execution in the thirteen years since Penry was decided, the Supreme Court agreed to review Atkins' death sentence. The Court heard oral arguments in the case on February 20, 2002.

The ruling

The Eighth Amendment to the United States Constitution generally forbids cruel and unusual punishments. In the ruling it was stated that, unlike other provisions of the Constitution, the Eighth Amendment should be interpreted in light of the "evolving standards of decency that mark the progress of a maturing society."

The best evidence on this score was determined to be the judgment of state legislatures. Accordingly, the Court had previously found that the death penalty was inappropriate for the crime of rape, Coker v. Georgia, 433 U.S. 584 (1977), or for those convicted of felony murder who neither themselves killed, attempted to kill, or intended to kill, Enmund v. Florida, 458 U.S. 782 (1982).

The Court found that the Eighth Amendment forbids the imposition of the death penalty in these cases because "most of the legislatures that have recently addressed the matter" have rejected the death penalty for these offenders, and the Court will generally defer to the judgments of those bodies.

The Court then described how a national consensus that the mentally retarded should not be executed had emerged. In 1986, Georgia was the first state to outlaw the execution of the mentally retarded. Congress followed two years later, and the next year Maryland joined these two jurisdictions.

Thus, when the Court confronted the issue in Penry in 1989, the Court could not say that a national consensus against executing the mentally retarded had emerged. Over the next twelve years, nineteen more states exempted the mentally retarded from capital punishment under their laws, bringing the total number of states to twenty-one, plus the federal government.

In light of the "consistency of direction of change" toward a prohibition on the execution of the mentally retarded, and the relative rarity of such executions in states that still allow it, the Court proclaimed that a "national consensus has developed against it." The Court, however, left it to individual states to make the difficult decision regarding what determines mental retardation.

Also, the "relationship between mental retardation and the penological purposes served by the death penalty" justifies a conclusion that executing the mentally retarded is cruel and unusual punishment that the Eighth Amendment should forbid.

In other words, unless it can be shown that executing the mentally retarded promotes the goals of retribution and deterrence, doing so is nothing more than "purposeless and needless imposition of pain and suffering," making the death penalty cruel and unusual in those cases. Being mentally retarded means that a person not only has substandard intellectual functioning but also significant limitations in adaptive skills such as communication, self-care, and self-direction.

These deficiencies typically manifest before the age of eighteen. Although they can know the difference between right and wrong, these deficiencies mean they have a lesser ability to learn from experience, engage in logical reasoning, and understand the reactions of others. This means that inflicting the death penalty on one mentally retarded individual is less likely to deter other mentally retarded individuals from committing crimes.

As for retribution, society's interest in seeing that a criminal get his "just desserts" means that the death penalty must be confined to the "most serious" of murders, not simply the average murder. The goal of retribution is not served by imposing the death penalty on a group of people who have a significantly lesser capacity to understand why they are being executed.

Because the mentally retarded are not able to communicate with the same sophistication as the average offender, there is a greater likelihood that their deficiency in communicative ability will be interpreted by juries as a lack of remorse for their crimes. They typically make poor witnesses, being more prone to suggestion and willing to "confess" in order to placate or please their questioner. As such, there is a greater risk that the jury may impose the death penalty despite the existence of evidence that suggests that a lesser penalty should be imposed.

In light of the "evolving standards of decency" that the Eighth Amendment demands, the fact that the goals of retribution and deterrence are not served as well in the execution of the mentally retarded, and the heightened risk that the death penalty will be imposed erroneously, the Court concluded that the Eighth Amendment forbids the execution of the mentally retarded.

In dissent, Justices Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist argued that in spite of the increased number of states which had outlawed the execution of the mentally retarded, there was no clear national consensus, and that even given if there were, there was no basis in the Eighth Amendment for using such measures of opinion to determine what is "cruel and unusual".

Justice Antonin Scalia commented in his dissent that "seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members". The citing of an amicus brief from the European Union also drew criticism from Chief Justice Rehnquist, who denounced the "Court's decision to place weight on foreign laws."

Subsequent Developments

Ironically, although Atkins's case and ruling may have saved other mentally retarded inmates from the death penalty, a jury in Virginia decided in July 2005 that he was intelligent enough to be executed as the constant contact he had with his lawyers had intellectually stimulated him and raised his IQ above 70, making him competent to be put to death under Virginia law. The prosecution had argued that his poor school performance was caused by his use of alcohol and drugs, and that his lower scores in earlier IQ tests were tainted. His execution date was set for December 2, 2005 but was later stayed.

However, in January 2008, his sentence was commuted to life in prison due to evidence of prosecutorial misconduct in the original case.


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