Death Row Decisions
by Lisa Fine Goldstein, Education Week, American
Education's Newspaper of Record, October 9, 2002
For more articles on disabilities and special ed visit
When Daryl Renard Atkins was in school, no one came to the
conclusion that he was mentally retarded—or even in need of
But years later, school records and teacher recollections
helped establish the Virginia death row inmate's diagnosis in
time to avert his execution. He had faced the death penalty
after being convicted of capital murder in the 1996 killing of
Eric Michael Nesbitt, 21, an airman stationed at Langley Air
Force Base in southeastern Virginia.
Mr. Atkins' case, Atkins v. Virginia, eventually wound its way
to the U.S. Supreme Court last term. The court ruled June 20
that the execution of mentally retarded people is
unconstitutionally cruel and unusual punishment.
The decision puts the K-12 special education community, and
school officials in general, in an unusual position: Clinical
decisions made about a student could be critically important
later if that afflicted child becomes a convicted adult.
Criminal- defense lawyers now say that student special
education records documenting the mental retardation diagnosis
of defendants will prove to be key in such cases. So will
testimony from teachers or from school psychologists.
But will such records be around when lawyers start looking? No
federal law requires schools to keep special education records
permanently. And state laws vary on how long special education
records must be kept, typically ranging from three to seven
years after the students graduate or otherwise leave school.
"We are increasingly hearing proposals to destroy special
education records after three or five years," said James W.
Ellis, a law professor at the University of New Mexico and Mr.
Atkins' lawyer. "That is catastrophic for these cases for
everybody's side. There has to be access to these records so
the court can explore these records."
Federal law says schools can destroy such records at the
parents' request or the education officials' behest as soon as
they are "not educationally useful." Parents must be given
notice if the district intends to destroy special education
records. School officials may keep indefinitely basic
information such as students' names, addresses, dates of
graduation, attendance records, and grades, the Individuals
with Disabilities Education Act says.
"There is only so much space to store stuff," said Charles
Rogers, a spokesman for the Council for Exceptional Children,
a special education advocacy group based in Arlington, Va.
"I'm sure schools are eager to clean up their records to make
way for new students and their records."
With the stakes so high in death-penalty cases, some fear that
in the wake of the Supreme Court's decision, defendants will
fake being mentally retarded by intentionally doing badly on
intelligence tests or feigning other signs of incapacity.
Justice Antonin Scalia, on the losing end of the court's 6-3
ruling in June, expressed concern about such deception in his
"One need only read the definition of mental retardation
adopted by the American Association of Mental Retardation and
the American Psychiatric Association to realize that the
symptoms of this condition can readily be feigned," Justice
To be diagnosed as mentally retarded, according to the
American Association of Mental Retardation, an individual must
have an IQ score lower than 70 and also exhibit a limited
ability to communicate, work, or take care of himself. Mental
retardation typically is genetic, or is caused by events in
the womb or during delivery, and the symptoms may not be
evident for some years. But, the association says, the
condition manifests itself before age 18.
Therefore, defense lawyers say, a diagnosis of the condition
in students' early years can be trusted. No student or parent
would be motivated to falsely claim a stigmatizing condition
at that point, they say, years before such a diagnosis might
come in handy before a jury. That's where schools come in.
"It is conceivable that now we are going to have these people
who become 'mentally retarded' overnight," said Chris Adams, a
spokesman for the National Association of Criminal Defense
"School records are, hands down, the best evidence to prove
whether [a defendant] is or is not retarded," continued Mr.
Adams, who is an Atlanta-based lawyer for the Southern Center
for Human Rights, a nonprofit death-penalty and prisoners'
rights defense firm.
Could a school district find itself the target of an
educational malpractice lawsuit from a criminal defendant
claiming that his school inaccurately appraised his mental
capacity, thus exposing him to the death penalty? Special
education advocates dismissed that possibility. Accused
killers are on trial, they said, not school districts.
"Using school records would not be done to call into question
any diagnostic judgment by a school," said David Egnor, the
senior director for governmental relations for the Council for
Exceptional Children. "It would be part of the information
that a court would consider."
In the case of Mr. Atkins, the Virginia convict, even though
he was not diagnosed as mentally retarded in his school years,
school records and teachers' testimony from the state's
Hampton school system portrayed a student who clearly had
limited intellectual abilities. Educators there may have
missed out on saving his education, but they may have saved
his life. At least for now.
The state of Virginia is disputing whether Mr. Atkins is in
fact mentally retarded. Since the Supreme Court decision,
states have been left to devise appropriate ways of applying
the new prohibition and of defining mental retardation.
Lawyers say to expect bills in state legislatures this coming
January that address the issue.
No dispute remains, however, that Mr. Atkins is a murderer.
Around midnight on Aug. 16, 1996, Mr. Atkins, who was 18 at
the time, and his former neighbor in Hampton, William A.
Jones, armed with a semiautomatic handgun, confronted Mr.
Nesbitt, an airman first class, outside a convenience store.
The two men drove him away in Mr. Nesbitt's pickup truck and
robbed him of the $60 he had in his wallet, then drove him to
an automatic teller machine so he could withdraw another $200.
A camera at the ATM recorded the entire transaction.
The two then drove Mr. Nesbitt 18 miles to a secluded road in
York County, Va., where he was shot eight times and died.
Here's where the story gets murky: Each man says the other was
the one who did the shooting. Only the person who pulls the
trigger is eligible for the death penalty under Virginia law.
Mr. Jones entered into a plea agreement with prosecutors, who
dropped several of the charges against him in return for his
testimony against Mr. Atkins. Mr. Jones is serving a life
sentence plus three years for first-degree murder and the use
of a firearm.
A York County jury in 1998 had sentenced Mr. Atkins to die for
capital murder, abduction, and robbery. Because of a
procedural glitch, a second jury reconsidered Mr. Atkins'
sentence, this time with the state disputing his mental
retardation diagnosis. The defense presented his IQ score,
teacher testimony, and school records. Again, in October 1999,
he was sentenced to death.
At the time of his 1998 trial, Mr. Atkins scored a 59 on IQ
tests. But school officials had spotted his problems long
before then. In school, he scored below the 20th percentile on
every standardized test, failed the 2nd and 10th grades, and
was advanced from the 4th grade to the 5th grade for social
reasons, rather than on academic merit, said Mr. Ellis, his
"A number of teachers identified the basic problems, but
nobody ever sent him to special education," Mr. Ellis said.
"We were puzzled why that hadn't happened. It was still
possible to prove through teachers."
No Change in Methods
So should schools be bracing themselves to handle mental
retardation cases differently? Not at all, lawyers and
educators say. Mr. Adams of the defense lawyers' association
did say, however, that educators should expect the demand for
access to special education records to increase.
Mr Adams does not expect the new state laws to address how
long schools should have to keep special education records.
But he said he plans to lobby states to take up that issue
Experts say 10 percent of the 3,600 inmates currently on death
row around the country are mentally retarded. Between 1
percent and 3 percent of the general population is mentally
retarded. Before last June's Supreme Court decision, 18 states
of the 38 that allow the death penalty had already passed laws
barring the execution of people who are mentally retarded.
Experts expect the Supreme Court decision will move at least
200 people off death row.
Since the mid-1970s, after a Supreme Court ruling allowed
states to reinstate the death penalty, 35 mentally retarded
people have been executed in the United States, according to
As of last year, about 614,000 American ages 6 to 21 had some
level of mental retardation and needed special education in
school, according to the U.S. Department of Education.
Education groups say schools will not change the way they
diagnose mental retardation in students as a result of the
Supreme Court decision. Schools come up with the diagnosis by
administering IQ tests and observing the students' abilities
In fact, said Mr. Ellis, the lawyer for Mr. Atkins, an
objective diagnosis is possible only if schools proceed as
they normally would in trying to diagnose and help any student
with special needs.
"No parent or school wants to be building a record in the
event that their child kills somebody," Mr. Ellis said. "It
has been distressing to see educators have clear evidence in
hand of a student's mental retardation and not come up with an
educational program. The criminal-justice system is not the
reason to do it right."