Court bars execution of mentally retarded

Erin Neff

Thursday, June 20, 2002 | 11:10 a.m.

In a ruling that could lead to a reduced sentence for Nevada death row inmate Thomas Nevius, the U.S. Supreme Court today ruled that executing the mentally ill constitutes "cruel and unusual" punishment.

The 6-3 decision in Atkins v. Virginia is expected to have a ripple effect nationwide and will likely take one of Nevada's most well-known convicted killers off death row.

Nevius, 50, who was convicted in a 1980 burglary and murder in Las Vegas, is alleged to have the mental capacity of an 8-year-old. He has had various scores on IQ tests, ranging from 64 to 77 -- both below and above the 70 benchmark Nevada uses to determine mental retardation.

Keith Munro, Gov. Kenny Guinn's general counsel, believes the decision will have a huge impact on Nevius' case.

"My feeling is the opinion will clearly have an impact on this case," said Munro, who is advising the governor in the Nevius case.

Nevius' case goes to the state Pardons Board in November. Nevius was scheduled for death last spring, but Guinn called a Pardons Board hearing on the matter. A decision is pending on reports from three psychiatrists.

Guinn's office released an evaluation of Nevius this morning.

The examination by Jeffrey Kern, a clinical psychologist at UNLV, said his study showed Nevius to "fall within the range of functioning in the most upper level of mildly mentally retarded."

Nevius scored above 70 on several IQ tests. But Kern said it is possible to diagnose mental retardation in individuals with IQs between 70 and 75.

Chief Deputy Clark County District Attorney David Roger said the Supreme Court's decision should have no bearing on the Pardons Board. He said the question still is whether Nevius is retarded as defined by the law.

Roger argued before the Pardons Board last year that IQ alone does not make someone retarded and that a lack of adaptive behavior must also be considered.

This morning Michael Pescetta, the federal public defender who has handled Nevius' appeals, said he hasn't seen any of the evaluations but said it may now be possible to go back to court and vacate Nevius' sentence.

Pescetta was scheduled to talk this morning with an attorney for the state to plan how to handle Nevius' case.

The high court's ruling today overturned a 1989 Supreme Court opinion that said executing persons with mental retardation was not a violation of the Eighth Amendment's ban on cruel and unusual punishment because a "national consensus" had not developed against such executions.

Over the past 13 years, a total of 16 states have enacted laws prohibiting the execution of the mentally ill. Currently 18 states and the federal government prohibit such executions.

Today's ruling saw Justices Sandra Day O'Connor and Byron White change their positions from the 1989 case, during which time only two states with the death penalty banned it from being imposed on the mentally ill. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.

"It is not so much the number of these states that is significant, but the consistency of the direction of the charge," Justice John Paul Stevens wrote for the majority.

The majority view impacts cases in 20 states, including Nevada, although it is impossible to determine how many death row inmates nationwide are mentally ill, death penalty opponents said today.

Daryl Atkins has been on Virginia's death row since April 1998 for the 1996 murder of a Langley Air Force Base airman. Atkins has an IQ of 59, a number that places him somewhere between 9 and 13 years old.

His case mirrors Nevius' in the sense that defense counsels in both cases did not present evidence of mental illness at the time of the initial trial. Both Atkins and Nevius presented the evidence on appeal.

Nevius was convicted in a July 1980 case in which four men -- after a drinking vodka and taking Quaaludes and marijuana -- decided to burglarize the home of David and Rochelle Kinnamon.

David Kinnamon was at work when two of the men ransacked the apartment and Nevius and another man tried to sexually assault Rochelle Kinnamon. When David Kinnamon returned home, he interrupted the burglary and sexual assault, and caused the four to flee out the window. One man fired four shots at David Kinnamon, hitting him in the head and killing him.

Nevius was identified by his co-defendants as the shooter.

Defendant Greg Everett received life without the possibility of parole; Art Tiger got a life sentence with parole possible in 2020 and David Nevius received probation after identifying his half-brother Thomas as the shooter.

Nevius' execution was scheduled three times, and he had pursued four rounds of appeals in the state courts and two in the federal court system. In April of 2001, after grappling with the case, Guinn asked the state Pardons Board to hold a hearing.

An interim legislative committee chaired by Assemblywoman Sheila Leslie, D-Reno, voted unanimously last week to recommend the Legislature ban the execution of the mentally ill.

"I think the Supreme Court decision reflects the change in the consensus in this country that executing the mentally retarded is fundamentally wrong," Leslie said.

She said the death penalty should "be reserved for the most culpable."

"It's wrong to give them the ultimate punishment because they aren't the most culpable given their lack of abilities," Leslie said this morning after the ruling.

JoNell Thomas, a private attorney who is handling seven death row clients, called today's ruling "a positive step."

"It's so wonderful," she said. "I would hope it would at least trigger some movement on some of the other reforms. I think the pendulum has started swinging to the other position."

Virginia Sloan, executive director of The Constitution Project -- a Washington, D.C.-based death penalty law initiative -- said that while the high court's decision is limited, it will have a broader impact.

"I think it's a huge boost for reform efforts across the country," Sloan said today. "The Supreme Court has come full circle and I think that gives us a lot of hope that this is a first and very important step toward reform."