by Thomas G. Walker. Washington, DC: CQ Press, 2009. 284pp. Paper. $26.95. ISBN: 9780872894181.

Reviewed by James R. Acker, School of Criminal Justice, University at Albany. Email: acker [at] albany.edu.


Just after midnight on August 17, 1996 a Hampton, Virginia bank surveillance camera recorded the chilling image of the driver of a pickup truck withdrawing money from an ATM while the man seated next to him – the truck’s owner, 21-year-old Eric Nesbitt – was held at gunpoint by a third man in the vehicle. Hours later, Nesbitt’s bullet-riddled body was found in neighboring York County. The ATM photos led to the arrest of the driver of the pickup truck, 26-year-old William Jones, and the man seen brandishing the gun, 18-year-old Daryl Atkins. In February 1998 Atkins was convicted of capital murder and sentenced to death. His case reached the United States Supreme Court four years later. In a 6-3 decision, the justices vacated Atkins’ death sentence and, renouncing their contrary ruling in PENRY v. LYNAUGH (1989), announced that the Eighth Amendment to the United States Constitution prohibits the capital punishment of mentally retarded offenders (ATKINS v. VIRGINIA 2002). Doctrinally, the ruling represented a major victory for opponents of the death penalty and for supporters of mentally retarded individuals. Ironically, Atkins gained little more than a reprieve from the landmark ruling that bears his name. Although he ultimately would be spared lethal injection, he teetered on the brink of execution after a Virginia jury rejected his own “Atkins claim” on remand.

While the Supreme Court’s 2002 decision and its antecedents are the centerpiece of Thomas G. Walker’s “ELIGIBLE FOR EXECUTION: THE STORY OF THE DARYL ATKINS CASE,” the narrative continuously evolves, taking twists and turns befitting an unlikely mystery novel. Indeed, the (apparent) last chapter in the case was written by the Virginia Supreme Court several months after the book’s publication (IN RE COMMONWEALTH 2009), a resolution that was anticipated in the volume’s pages and presumably soon will be announced in the companion website, http://walker.cqpress.com.

Walker, the Goodrich C. White Professor of Political Science at Emory University, confesses to having long been “intrigued” (p.x) by the prospect of undertaking an in-depth study of a major constitutional case. He chose ATKINS v. VIRGINIA (2002) and uses ELIGIBLE FOR EXECUTION to multiple ends: to lay bare the issues, rationale, and implications of the Supreme Court’s decision; to explain how a criminal case takes shape and progresses through the justice system and the courts; and to examine in greater detail the constitutional jurisprudence of capital punishment (pp.ix-x). The book [*539] is particularly edifying as “a reminder that important Supreme Court rulings on constitutional issues are not just about legal theories, doctrines, and precedents. These decisions involve real people – often society’s most vulnerable – who frequently have suffered catastrophic losses and have much at stake” (p.x).

ELIGIBLE FOR EXECUTION unfolds sequentially, beginning with the abduction, robbery, and murder of Eric Nesbitt. The crime details are followed by a description of the police investigation and apprehension of Jones and Atkins, and then the decision by prosecutor Eileen Addison to allow Jones to plead guilty to non-capital murder in exchange for his testimony against Atkins and to pursue a capital murder conviction and death sentence against Atkins. An interlude overviews the social and legal history of capital punishment, including the Supreme Court’s attempts to divine the meaning of the Eighth Amendment’s prohibition against cruel and unusual punishments by consulting and giving content to “the evolving standards of decency that mark the progress of a maturing society” (TROP v. DULLES 1958, p.101, plurality opinion). Nearly a decade before Atkins’ trial, as Walker explains, a divided Court had rejected Texas death row inmate Johnny Paul Penry’s claim that contemporary standards of decency precluded the execution of mentally retarded offenders (PENRY v. LYNAUGH 1989).

The issue of mental retardation would surface at Daryl Atkins’ trial and eventually dominate subsequent legal proceedings. Under Virginia law, only the actual killer can be convicted of capital murder; accomplices are not death penalty-eligible. Atkins was found guilty after the jury rejected his lawyers’ argument that the prosecution had failed to prove that Atkins, and not William Jones, shot and killed Eric Nesbitt. At the trial’s penalty phase, clinical psychologist Dr. Evan Nelson appeared as the only defense witness. He testified that he had interviewed Atkins, familiarized himself with Atkins’ medical and school records, and administered an intelligence test on which Atkins received an IQ score of 59. Nelson thereupon concluded that Atkins was mentally retarded. Under the Supreme Court’s ruling in PENRY, in effect when Atkins was tried, mental retardation did not exempt offenders from death penalty eligibility, although it could be offered as a mitigating factor for sentencing. Atkins’ jury deliberated only an hour and forty minutes before recommending the death penalty. The Virginia Supreme Court vacated Atkins’ death sentence on appeal because of erroneous jury instructions, but Atkins was again sentenced to die following a new hearing at which the prosecution offered its own expert witness, Dr. Stanton Samenow, who disputed that Atkins was mentally retarded. Although Samenow failed to administer a comprehensive standardized intelligence test, he had reviewed various records and interviewed Atkins, finding it significant that Atkins correctly used words such as “decimal” and “parable” and knew the identities of the president of the United States and the governor of Virginia (p.152). With two judges dissenting, the Virginia Supreme Court this time affirmed Atkins’ death sentence (ATKINS v. COMMONWEALTH 2000), setting the stage for litigation in the U.S. Supreme Court. [*540]

Atkins’ case became a constitutional watershed by happenstance. The Supreme Court had previously granted certiorari in a North Carolina case involving condemned murderer Ernest McCarver to re-examine whether, in light of significant shifts of legislative policy in the wake of PENRY, executing mentally retarded offenders remained consistent with evolving standards of decency and the Eighth Amendment. Atkins’ attorneys had not even presented the Eighth Amendment issue in their original cert. petition, which they amended in light of the justices’ decision to consider that question in MCCARVER. When North Carolina enacted legislation exempting mentally retarded offenders from capital punishment, the high court dismissed McCarver’s case as moot and granted certiorari in Atkins. Walker describes how Virginia’s attorneys and Atkins’ defense team, now led by New Mexico law professor James Ellis, an expert and leading advocate for the rights of mentally retarded individuals, prepared for and presented their cases in the Supreme Court, including their strategies to persuade the justices most likely to represent the swing votes. His analysis of the eventual 6-3 ruling that vacated Atkins’ death sentence and announced the constitutional prohibition against executing mentally retarded offenders is informative and accessible to readers not versed in law. Although the ruling was a jurisprudential breakthrough, Daryl Atkins’ case was far from over. As often occurs, Justice Stevens’ majority opinion concluded by directing that, “The judgment . . . is reversed and the case is remanded for further proceedings not inconsistent with this opinion” (ATKINS v. VIRGINIA, 2002, p. 321).

For Atkins, this result meant only that his scheduled execution was held in abeyance pending further state court proceedings to determine whether he in fact was mentally retarded. A jury was convened for the sole purpose of deciding whether Atkins could establish (by a preponderance of the evidence) that he came within Virginia’s definition of mental retardation, which required proof of “significantly subaverage intellectual functioning” as demonstrated by a standardized IQ test, “significant limitations in adaptive behavior,” and that the relevant symptoms were manifested prior to age 18 (p.243). “We’re all rookies here,” declared the trial judge presiding over Atkins’ hearing, the first of its kind in the state (p.245). The judge was right. After the jury determined that Atkins had not established that he was mentally retarded, thus reinstating the death sentence, the Virginia Supreme Court found on appeal that the proceeding was procedurally flawed. It remanded the case “for a new proceeding . . . to determine whether Atkins is mentally retarded” (ATKINS v. COMMONWEALTH, 2006, p.102).

Then came the truly startling development in the case – in Walker’s words, “a final surprise” (p.262) that was as unexpected as it was removed from the Supreme Court’s epochal ruling. After a decade’s silence, the attorney who had represented William Jones, Atkins’ accomplice in the robbery and murder of Eric Nesbitt, came forward to disclose what had occurred during discussions involving Jones, himself, and prosecutors as they interviewed Jones in anticipation of his testifying against Atkins at his original trial. Although the bulk of the lengthy session [*541] had been tape recorded, and the recording shared with Atkins’ trial lawyers, Jones’ attorney maintained that the tape recorder at one point was turned off while Jones was coached by the prosecutors to make his testimony more damning. The prosecutors adamantly denied improperly coaching Jones, but they conceded that the tape recorder had been silenced for approximately 16 minutes while they discussed Jones’ narrative with him. They did not reveal the existence of the 16-minute gap to Atkins’ attorneys, nor disclose the contents of what they had discussed with Jones during that interval. Atkins’ attorneys secured a hearing, alleging that the prosecution had breached its duty under BRADY v. MARYLAND (1963) to disclose exculpatory evidence. The trial court agreed, ruling in January 2008 that “the suppressed information probably would have affected the outcome of Daryl Atkins’ trial had it been revealed to Atkins’ counsel in 1998” (IN RE COMMONWEALTH, 2009, pp.*2-*3). The court then exercised its discretionary authority under Virginia law to reduce Atkins’ death sentence to life imprisonment, a judgment that was upheld by the Virginia Supreme Court following the publication of Walker’s book (id.).

In addition to navigating the factual and legal issues surrounding Daryl Atkins’ case, tracking the commission of the crime through the trial, appeals, Supreme Court litigation, and the eventual denouement, ELIGIBLE FOR EXECUTION digresses frequently to offer readers elementary descriptions of matters ranging from the workings of the adversarial system of justice, to the hierarchical structure of the judiciary and the function of precedent, the importance of federalism, and related topics. Readers familiar with the rudiments of criminal justice, law, and government will find these excursions mildly tedious. The book is written at an introductory level, appropriate for undergraduates rather than more advanced students or specialists in capital punishment, and is expository rather than deeply analytical. Those already versed in death penalty law are unlikely to find fresh insights about litigation strategies, doctrine, or emerging and continuing developments concerning “Atkins issues” (see, e.g., Blume, Johnson and Seeds 2009). These observations about the volume are not offered as criticisms, but rather as signposts to help direct readers with more and less familiarity with issues of criminal justice, law, and capital punishment accordingly. Undergraduate students, particularly in criminal justice and political science, and less initiated readers generally, will find Walker’s ELIGIBLE FOR EXECUTION to be informative and captivating. The book is a sobering case study at the intersection of biography and constitutional doctrine, bearing kinship to the classic tradition of literary tragedy.

Blume, John H., Johnson, Sheri Lynn and Seeds, Christopher. 2009. “Mental Retardation and the Death Penalty Five Years after Atkins.” In Charles S. Lanier, William J. Bowers and James R. Acker (eds), THE FUTURE OF AMERICA’S DEATH PENALTY: AN AGENDA FOR THE NEXT GENERATION OF CAPITAL PUNISHMENT RESEARCH. Durham, NC: Carolina Academic Press. Pp.241-259. [*542]

ATKINS v. COMMONWEALTH. 2000. 534 S.E.2d 312 (Va.).

ATKINS v. COMMONWEALTH. 2006. 631 S.E.2d 93 (Va.).

ATKINS v. VIRGINIA. 2002. 536 U.S. 304.

BRADY v. MARYLAND. 1963. 373 U.S. 83.

IN RE COMMONWEALTH. 2009. ___ S.E.2d ___, 2009 WL 1566819 (Va., June 4, 2009).

PENRY v. LYNAUGH. 1989. 492 U.S. 302.

TROP v. DULLES. 1958. 356 U.S. 86.

© Copyright 2009 by the author, James R. Acker.