Daryl Atkins currently sits in a Virginia prison awaiting the death penalty, a sentence typical for his crime of killing a man five years ago.

However, Atkins, like a surprisingly large number of death-row convicts, is mentally disabled.

The execution of mentally disabled offenders has long been a controversial and complex issue. Since 1976, the United States has executed 35.

“I don’t think there is a clear standard,” said Howard Schwebber, UW-Madison assistant professor of political science. “Basically, you can be executed for a crime if you can be convicted of a crime.”

The U.S. Supreme Court will hear Atkins’ appeal in the present term to decide whether the execution of the mentally disabled is constitutional or a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Originally, the Court planned to review the case of a mentally disabled convict from North Carolina, but dismissed the case when the state passed a bill prohibiting the execution of the mentally disabled.

The Virginia Supreme Court rejected the appeal last year, in which Atkins’ attorneys claimed the trial jury failed to consider Atkins’ mental disabilities before sentencing him to death.

The main issue is whether Atkins is intelligent enough to be held morally responsible for his crimes. Atkins is considered mildly disabled and has an IQ of 59. The average IQ is between 85 to 115. He was convicted of robbing and shooting a Langley Air Force Base airman in 1996.

“Committing a crime requires a certain mental state — premeditation or intention,” Schwebber said. “The idea is if he didn’t completely understand what he was doing, he shouldn’t be punished as severely.”

The Supreme Court ruled in 1989, in a 6-3 vote, that the execution of mentally disabled defendants was not a violation of the Eighth Amendment. In the case of John Paul Penry, a mentally disabled Texas convict, the Court said that a “national consensus” had not developed against the practice.

It said mental disability is instead a mitigating factor juries should consider in such cases.

The American Association on Mental Retardation has recognized three factors required for a person to be classified as mentally disabled. A person must have an IQ significantly below the average IQ of 85 to 115, difficulty coping with the everyday world and stressful situations and the disability since birth or childhood.

The AAMR has estimated that people with mental disability account for 4 percent to 10 percent of the criminal justice population, while they make up only 1.5 percent to 2.5 percent of the population at large.

Many believe the statistics are due to characteristics of people with mental disability.

Criminals often use mentally disabled people to assist them in illegal acts because people with the disability do not understand the consequences of their involvement.

In addition, people with mental disability frequently increase their vulnerability to arrest, conviction and execution by giving misunderstood responses to officers.

For these and other reasons, many citizens oppose executing convicts with mental disability, even though most support capital punishment in general.

In the 1989 decision maintaining the legality of executing mentally disabled offenders, the Supreme Court said states were allowed to create their own laws regarding the executions.

At that time, only two states prohibited executing the mentally disabled.

Currently, 18 states and the federal government forbid the practice, and 12 states and the District of Columbia prohibit the death penalty in all cases.

“We can have as many as 51 different standards at work here,” Schwebber said.

Some law experts believe the trend in opposition among states and public will prove that a national consensus has formed in opposition to executing the mentally disabled and that the Supreme Court will ban the practice nationwide.

Others, including Schwebber, predict the Court will not overturn their previous decision.

“It will be a close decision, 5-4 or 6-3,” he said. “The Supreme Court will take the opportunity to give very broad guidelines and leave questions for individual states to determine.”