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Saturday, March 05, 2005

Tom Oliphant in the Boston Globe: Blaming the bankrupt

[Thanks to Dick Bernard for passing this on.]

I was going to write a lengthy tirade on the health care system and its role
in burgeoning bankruptcies. But Oliphant's column states it pretty clearly -
and now we have yet another reason to work for universal health care, let
alone subvert this attack on victims of bankruptcy. Ten years ago I had to
file for Chapter 7, and it ain't pretty and it's no out for anyone. People
are deeply shamed when they have to file, and the shame is heaped on them
afterward by creditors, credit-reporting companies, prospective vendors and
all sorts of nefarious others. To imagine that bankruptcy is used as a
conscious money management system is to be utterly deluded. But Republicans
are treating this matter the way they do welfare recipients as lazy
ne'er-do-wells. Blaming the victim to push bad policy is an old tactic. We
must not let it happen again.

Blaming the Bankrupt

By Thomas Oliphant,
Globe Columnist  |  February 15, 2005


I BUMPED into an arresting fact the other day about personal financial
catastrophes while studying an important new examination of bankruptcy in
this country.

Four out of 10 people interviewed as part of a Harvard Law School and
Medical School study of Americans who were going through the agony of the
process said they had lost their telephone service during the two years
before they filed. More than half had skipped doctor or dental appointment
because of the cost, more than 40 percent had not filled a prescription, and
nearly one in five had missed meals.

This genuine cross-section -- more than 900 interviews of people in five
federal court districts plus a detailed look at more than 1,700 cases --
clashes with the stereotype the Bush administration and its business buddies
favor in their unrelenting campaign to make bankruptcy even more of a
demeaning, draining ordeal than it already is. The Harvard study comes at a
time when the administration and its conservative congressional bosses are
about to start a new effort to tighten the bankruptcy law screws.

This kind of organized cruelty demands a stereotype -- of the profligate,
irresponsible conniver who spends more effort trying to hide assets and
dodge creditors than working hard and paying off. In the Bush propaganda,
bankruptcy is a financial planning tool for the irresponsible.

The reality is heartbreaking -- bankruptcy as the only way out for upwards
of 3 million adults and children who have gone through a living hell. Most
arresting of all is the study's discovery that roughly half of these cases
stem not from spending sprees on credit cards but from medical bills flowing
out of illness.

It is a fact of economic life today, not a symptom of cultural decline, that
personal bankruptcy is not uncommon, with roughly a third more filing now
than there were a generation ago. In the same period, the available evidence
is that medical causes of financial catastrophe have increased explosively
-- by a factor of something like 23 -- right along with exploding costs and
declining availability of adequate insurance.

Among the researchers working on the Harvard study -- in many respects the
first detailed examination of the medical roots of personal financial stress
-- was Harvard Law professor Elizabeth Warren. With her daughter two years
ago, she wrote ''The Two-Income Trap," a pioneering examination of the
extreme fragility of working family life right up through the middle-class.
It's important to remember that while vitally important by itself,
bankruptcy is but the tip of an even larger iceberg of vulnerability and

Having the trappings -- a job, health insurance, etc. -- of middle-class
life is no defense against the economic ravages of illness. Fully
three-quarters of the filers had health insurance at the onset of the
illiness that broke them. They ended up with average, out-of-pocket costs of
nearly $12,000.

The study found that increasingly common lapses in insurance coverage were a
major indicator of susceptibility to bankruptcy; nearly 40 percent of the
filers had experienced such a lapse. Of those covered at the outset,
three-fifths were under private insurance plans and a third lost that
protection during their emergency. Sixty percent cited bills from healthcare
providers as the major contributor; 47 percent cited drug costs; and more
than half cited curtailed employment income because of their own illness or
the need to care for a family member.

It also showed how the primary cause can produce others. Fifteen percent of
those with second or even third mortgages on their homes cited medical
expenses as the reason. According to the survey, delinquencies in mortgage
and rent payments, credit card payments, and utility bills were often the
result of dipping into those accounts to try to keep up with vital medical

The evidence from the study also underlines the extent to which inadequate
insurance coverage contributes to family distress when emergencies occur and
that such stingy policies are more the result of employer choices than
personal ones. As the study put it, ''We doubt that such under-insurance
reflects families' preference for risk. Few Americans have more than one or
two insurance options. Many insured families are bankrupted by medical
expenses well below the catastrophic thresholds of the deductible plans that
are increasingly popular with employers."

The obvious implication is that the separation of health insurance from
employment via universal, comprehensive coverage of the kind available in
Canada and Western Europe is the sensible alternative. Short of that ideal,
there is much that could be done to help, but the Bush solution is to
restrict the already painful choice of bankruptcy on the basis of a false

The study concludes with a useful allegory. ''In 1591, Pope Gregory XIV fell
gravely ill. His doctors prescribed pulverized gold and gems. According to
legend, the resulting depletion of the papal treasury is reflected in his
unadorned plaster sarcophagus in St. Peter's Basilica. Four centuries later,
solidly middle-class Americans still face impoverishment following a serious

Thomas Oliphant's e-mail address is

------ End of Forwarded Message

Wednesday, February 23, 2005

True Civility North of the Border

Reaching me circuitously by way of good progressive friends, this longish, but extraordinary speech by Paul Martin to the lower Canadian House. Why, oh, why can our own nation's promise be so defended by its top leadership? Because we haven't the built-in, daily accountability that comes with parliamentary systems, that's why.

Oh Canada!!  What a strong and beautiful affirmation of humanity. And what a
pleasure to read a political address by the leader of a country that is
intelligent, nuanced, dignified and expressing the highest ideals without it
just being PR spin.


I rise today in support of Bill C-38, the Civil Marriage Act. I rise in
support of a Canada in which liberties are safeguarded, rights are
protected and the people of this land are treated as equals under the law.

This is an important day. The attention of our nation is focused on this
chamber, in which John Diefenbaker introduced the Bill of Rights, in which
Pierre Trudeau fought to establish the Charter of Rights and Freedoms. Our
deliberations will be not merely about a piece of legislation or sections of
legal text - more deeply, they will be about the kind of nation we are
today, and the nation we want to be.

This bill protects minority rights. This bill affirms the Charter guarantee
of religious freedom. It is that straightforward, Mr. Speaker, and it is
that important.

And that is why I stand today before members here and before the people of
this country to say: I believe in, and I will fight for, the Charter of
Rights. I believe in, and I will fight for, a Canada that respects the
foresight and vision of those who created and entrenched the Charter. I
believe in, and I will fight for, a future in which generations of Canadians
to come, Canadians born here and abroad, will have the opportunity to value
the Charter as we do today - as an essential pillar of our democratic

There have been a number of arguments put forward by those who do not
support this bill. It's important and respectful to examine them and to
assess them.

First, some have claimed that, once this bill becomes law, religious
freedoms will be less than fully protected. This is demonstrably untrue. As
it pertains to marriage, the government's legislation affirms the Charter
guarantee: that religious officials are free to perform such ceremonies in
accordance with the beliefs of their faith.

In this, we are guided by the ruling of the Supreme Court of Canada, which
makes clear that in no church, no synagogue, no mosque, no temple - in no
religious house will those who disagree with same-sex unions be compelled to
perform them. Period. That is why this legislation is about civil marriage,
not religious marriage.

Moreover -- and this is crucially important - the Supreme Court has declared
unanimously, and I quote: "The guarantee of religious freedom in section
2(a) of the Charter is broad enough to protect religious officials from
being compelled by the state to perform civil or religious same-sex
marriages that are contrary to their religious beliefs."

The facts are plain: Religious leaders who preside over marriage ceremonies
must and will be guided by what they believe. If they do not wish to
celebrate marriages for same-sex couples, that is their right. The Supreme
Court says so. And the Charter says so.

One final observation on this aspect of the issue: Religious leaders have
strong views both for and against this legislation. They should express
them. Certainly, many of us in this House, myself included, have a strong
faith, and we value that faith and its influence on the decisions we make.
But all of us have been elected to serve here as Parliamentarians. And as
public legislators, we are responsible for serving all Canadians and
protecting the rights of all Canadians.

We will be influenced by our faith but we also have an obligation to take
the widest perspective -- to recognize that one of the great strengths of
Canada is its respect for the rights of each and every individual, to
understand that we must not shrink from the need to reaffirm the rights and
responsibilities of Canadians in an evolving society.

The second argument ventured by opponents of the bill is that government
ought to hold a national referendum on this issue. I reject this - not out
of a disregard for the view of the people, but because it offends the very
purpose of the Charter.

The Charter was enshrined to ensure that the rights of minorities are not
subjected, are never subjected, to the will of the majority. The rights of
Canadians who belong to a minority group must always be protected by virtue
of their status as citizens, regardless of their numbers. These rights must
never be left vulnerable to the impulses of the majority.

We embrace freedom and equality in theory, Mr. Speaker. We must also
embrace them in fact.

Third, some have counseled the government to extend to gays and lesbians the
right to "civil union." This would give same-sex couples many of the rights
of a wedded couple, but their relationships would not legally be considered
marriage. In other words, they would be equal, but not quite as equal as the
rest of Canadians.

Mr. Speaker, the courts have clearly and consistently ruled that this
option would offend the equality provisions of the Charter. For instance,
the British Columbia Court of Appeal stated that, and I quote: "Marriage is
the only road to true equality for same-sex couples. Any other form of
recognition of same-sex relationships falls short of true equality."

Put simply, we must always remember that "separate but equal" is not equal.
What's more, those who call for the establishment of civil unions fail to
understand that the Government of Canada does not have the constitutional
jurisdiction to do so. Only the provinces have that. Only the provinces
could define such a regime - and they could define it in 10 different ways,
and some jurisdictions might not bother to define it at all. There would be
uncertainty. There would be confusion. There would certainly not be

Fourth, some are urging the government to respond to the decisions of the
courts by getting out of the marriage business altogether. That would mean
no more civil weddings for any couples.

It is worth noting that this idea was rejected by the major religions
themselves when their representatives appeared before the Standing
Committee on Justice and Human Rights in 2003. Moreover, it would be an
extreme and counterproductive response for the government to deny civil
marriage to opposite-sex couples simply so it can keep it from same-sex
couples. To do so would simply be to replace one form of discrimination with

Finally, Mr. Speaker, there are some who oppose this legislation who would
have the government use the notwithstanding clause in the Charter of Rights
to override the courts and reinstate the traditional definition of marriage.
And really, this is the fundamental issue here.

Understand that in seven provinces and one territory, the lawful union of
two people of the same sex in civil marriage is already the law of the land.
The debate here today is not about whether to change the definition of
marriage - it's been changed. The debate comes down to whether we should
override a right that is now in place. The debate comes down to the Charter,
the protection of minority rights, and whether the federal government should
invoke the notwithstanding clause.

I know that some think we should use the clause. For example, some religious
leaders feel this way. I respect their candor in publicly recognizing that
because same-sex marriage is already legal in most of the country, the only
way - the only way - to again make civil marriage the exclusive domain of
opposite-sex couples is to use the notwithstanding clause.

Ultimately Mr. Speaker, there is only one issue before this House in this
debate. For most Canadians, in most parts of our country, same-sex marriage
is already the law of the land. Thus, the issue is not whether rights are to
be granted. The issue is whether rights that have been granted are to be
taken away.

Some are frank and straightforward and say yes. Others have not been so
candid. Despite being confronted with clear facts, despite being confronted
with the unanimous opinion of 134 legal scholars, experts in their field,
intimately familiar with the Constitution, some have chosen to not be
forthright with Canadians. They have eschewed the honest approach in favour
of the political approach. They have attempted to cajole the public into
believing that we can return to the past with a simple snap of the fingers,
that we can revert to traditional definition of marriage without consequence
and without overriding the Charter. They're insincere. They're disingenuous.
And they're wrong.

There is one question that demands an answer - a straight answer - from
those who would seek to lead this nation and its people. It is a simple
question: Will you use the notwithstanding clause to overturn the definition
of civil marriage and deny to Canadians a right guaranteed under the

This question does not demand rhetoric. It demands clarity. There are only
two legitimate answers - yes or no. Not the demagoguery we have heard, not
the dodging, the flawed reasoning, the false options. Just yes or no.

Will you take away a right as guaranteed under the Charter? I, for one, will
answer that question, Mr. Speaker. I will answer it clearly. I will say no.

The notwithstanding clause is part of the Charter of Rights. But there's a
reason that no prime minister has ever used it. For a prime minister to use
the powers of his office to explicitly deny rather than affirm a right
enshrined under the Charter would serve as a signal to all minorities that
no longer can they look to the nation's leader and to the nation's
Constitution for protection, for security, for the guarantee of their
freedoms. We would risk becoming a country in which the defence of rights is
weighed, calculated and debated based on electoral or other considerations.

That would set us back decades as a nation. It would be wrong for the
minorities of this country. It would be wrong for Canada.

The Charter is a living document, the heartbeat of our Constitution. It is
also a proclamation. It declares that as Canadians, we live under a
progressive and inclusive set of fundamental beliefs about the value of the
individual. It declares that we all are lessened when any one of us is
denied a fundamental right.

We cannot exalt the Charter as a fundamental aspect of our national
character and then use the notwithstanding clause to reject the protections
that it would extend. Our rights must be eternal, not subject to political

To those who value the Charter yet oppose the protection of rights for
same-sex couples, I ask you: If a prime minister and a national government
are willing to take away the rights of one group, what is to say they will
stop at that? If the Charter is not there today to protect the rights of one
minority, then how can we as a nation of minorities ever hope, ever believe,
ever trust that it will be there to protect us tomorrow?

My responsibility as Prime Minister, my duty to Canada and to Canadians, is
to defend the Charter in its entirety. Not to pick and choose the rights
that our laws shall protect and those that are to be ignored. Not to decree
those who shall be equal and those who shall not. My duty is to protect the
Charter, as some in this House will not.

Let us never forget that one of the reasons that Canada is such a vibrant
nation, so diverse, so rich in the many cultures and races of the world, is
that immigrants who come here - as was the case with the ancestors of many
of us in this chamber - feel free and are free to practice their religion,
follow their faith, live as they want to live. No homogenous system of
beliefs is imposed on them.

When we as a nation protect minority rights, we are protecting our
multicultural nature. We are reinforcing the Canada we value. We are
saying, proudly and unflinchingly, that defending rights - not just those
that happen to apply to us, not just that everyone approves of, but all
fundamental rights - is at the very soul of what it means to be a Canadian.

This is a vital aspect of the values we hold dear and strive to pass on to
others in the world who are embattled, who endure tyranny, whose freedoms
are curtailed, whose rights are violated.

Why is the Charter so important, Mr. Speaker? We have only to look at our
own history. Unfortunately, Canada's story is one in which not everyone's
rights were protected under the law. We have not been free from
discrimination, bias, unfairness. There have been blatant inequalities.

Remember that it was once thought perfectly acceptable to deny women
"personhood" and the right to vote. There was a time, not that long ago,
that if you wore a turban, you couldn't serve in the RCMP. The examples are
many, but what's important now is that they are part of our past, not our

Over time, perspectives changed. We evolved, we grew, and our laws evolved
and grew with us. That is as it should be. Our laws must reflect equality
not as we understood it a century or even a decade ago, but as we understand
it today.

For gays and lesbians, evolving social attitudes have, over the years,
prompted a number of important changes in the law. Recall that, until the
late 1960s, the state believed it had the right to peek into our bedrooms.
Until 1977, homosexuality was still sufficient grounds for deportation.
Until 1992, gay people were prohibited from serving in the military. In many
parts of the country, gays and lesbians could not designate their partners
as beneficiaries under employee medical and dental benefits, insurance
policies or private pensions. Until very recently, people were being fired
merely for being gay.

Today, we rightly see discrimination based on sexual orientation as
arbitrary, inappropriate and unfair. Looking back, we can hardly believe
that such rights were ever a matter for debate. It is my hope that we will
ultimately see the current debate in a similar light; realizing that nothing
has been lost or sacrificed by the majority in extending full rights to the

Without our relentless, inviolable commitment to equality and minority
rights, Canada would not be at the forefront in accepting newcomers from all
over the world, in making a virtue of our multicultural nature - the
complexity of ethnicities and beliefs that make up Canada, that make us
proud that we are where our world is going, not where it's been.

Four years ago, I stood in this House and voted to support the traditional
definition of marriage. Many of us did. My misgivings about extending the
right of civil marriage to same-sex couples were a function of my faith, my
perspective on the world around us.

But much has changed since that day. We've heard from courts across the
country, including the Supreme Court. We've come to the realization that
instituting civil unions - adopting a "separate but equal" approach - would
violate the equality provisions of the Charter. We've confirmed that
extending the right of civil marriage to gays and lesbians will not in any
way infringe on religious freedoms.

And so where does that leave us? It leaves us staring in the face of the
Charter of Rights with but a single decision to make: Do we abide by the
Charter and protect minority rights, or do we not?

To those who would oppose this bill, I urge you to consider that the core of
the issue before us today is whether the rights of all Canadians are to be
respected. I believe they must be. Justice demands it. Fairness demands it.
The Canada we love demands it.

Mr. Speaker: In the 1960s, the government of Lester Pearson faced
opposition as it moved to entrench official bilingualism. But it persevered,
and it won the day. Its members believed it was the right thing to do, and
it was. In the 1980s, the government of Pierre Trudeau faced opposition as
it attempted to repatriate the Constitution and enshrine a Charter of Rights
and Freedoms. But it persevered, and it won the day. Its members believed it
was the right thing to do, and it was.

There are times, Mr. Speaker, when we as Parliamentarians can feel the gaze
of history upon us. They felt it in the days of Pearson. They felt it in the
days of Trudeau. And we, the 308 men and women elected to represent one of
the most inclusive, just and respectful countries on the face of this earth,
feel it today.

There are few nations whose citizens cannot look to Canada and see their own
reflection. For generations, men and women and families from the four
corners of the globe have made the decision to chose Canada to be their
home. Many have come here seeking freedom -- of thought, religion and
belief. Seeking the freedom simply to be.

The people of Canada have worked hard to build a country that opens its
doors to include all, regardless of their differences; a country that
respects all, regardless of their differences; a country that demands
equality for all, regardless of their differences.

If we do not step forward, then we step back. If we do not protect a right,
then we deny it. Mr. Speaker, together as a nation, together as Canadians:
Let us step forward.


Monday, February 14, 2005

A Learning Shakespeare Sonnet

If only we could all revel so in the upside of our error.
Uncle Willie's sonnets can teach us how to love ourselves as well as
sweethearts on this Valentine's Day.
Love to all on this day, yes, but on all days.


CXIX. (Sonnet #119)

What potions have I drunk of Siren tears,
Distill'd from limbecks foul as hell within,
Applying fears to hopes and hopes to fears,
Still losing when I saw myself to win!
What wretched errors hath my heart committed,
Whilst it hath thought itself so blessed never!
How have mine eyes out of their spheres been fitted
In the distraction of this madding fever!
O benefit of ill! now I find true
That better is by evil still made better;
And ruin'd love, when it is built anew,
Grows fairer than at first, more strong, far greater.
So I return rebuked to my content
And gain by ill thrice more than I have spent.


Sunday, February 06, 2005

Justice or Barbarism?

The story below - how can I say this - is but one of increasingly frequent ones about the American criminal justice system – the callous and utterly immoral application of barbaric laws that refutes the core definition of justice.

We presume ourselves civilized people. We wallow in self-congratulatory plaudits over our body of law and our judicial system as the finest and fairest on the planet. But we deceive ourselves into believing these things because we cannot face the fact that, underneath it all, we must have revenge, not justice. We live in a persistent state of denial that by killing killers we're protecting society, deterring the killing of others and/or punishing the taking of life.

It's that sweet tang of revenge driving this craze for snuffing out the lives of deranged and disabled men (and some women) who, in the stupor of poverty, drugs, ignorance and diminished capacity to value their own lives or really understand "right" from "wrong," have taken another's.

So the state, in the cloak of high-minded righteousness, stoops to the same remedy for its own shortcomings, for its own expression of ignorance - and kills, often without knowing the truth, too often without caring to know it, merely clamoring for the eye and the tooth. And in all this we slaughter innocents. And in all this, we delude ourselves into accepting the witch-burnings that pass for justice, feeling powerless to confront a system that exploits the circus for political gain, dismissing the lives of accused with an even more cynical bloodlust with which they pursue their deaths.

But this—this obsession with killing killers, this descent into a pit of vipers poised for poisoning if only they can boost a man's IQ to where the law will allow his execution—this is a societal sickness that places our culture back in the darkest of dark ages. This, and the killing of children whose minds have barely formed the basis for judging the consequences of their behavior brings into sharp relief just how incapable we are of fulfilling our promise as human animals, as societal beings, as engaged problem-solvers rather than just another street gang by a different name.

We carry this into battle, into the Abu Ghraibs and the Guantánamos and other venues where our true colors emerge as a country at war with regimes and ideologies we claim have no respect for life. Where is ours? What effect can this possibly have on our collective advancement as interdependent peoples with common needs, common problems, seeking common solutions with real compassion for the value for all humanity? What effect is this having on the psyches of new generations of children hardened by the inhuman behavior of their parents and other authority figures—priests, police and prosecutors?

For all of the great industrial, scientific and technological breakthroughs the human mind has made, we still cannot seem to grasp the fundamental business of simply being human, recognizing its inherent downside in ourselves and in others—and two things that would make us the most civilized of nature's beings: forgiveness and the capacity to acknowledge our errors.

Andy Driscoll
February 6, 2005

Inmate's Rising I.Q. Score Could Mean His Death

ORKTOWN, Va., Feb. 3 - Three years ago, in the case of a Virginia man named
Daryl R. Atkins, the United States Supreme Court ruled that it was
unconstitutional to execute the mentally retarded. But Mr. Atkins's recent
test scores could eliminate him from that group.

His scores have shot up, a defense expert said, thanks to the mental workout
his participation in years of litigation gave him.

The Supreme Court, which did not decide whether Mr. Atkins was retarded,
noted that he scored 59 on an I.Q. test in 1998. The cutoff for retardation
in Virginia is 70.

A defense expert who retested Mr. Atkins last year found that his I.Q. was
74. In court here on Thursday, prosecutors said their expert's latest test
yielded 76.

Mr. Atkins, a slight, balding 27-year-old in an orange jumpsuit, sat slumped
with his chin on his hand as lawyers argued about whether his intelligence
was low enough to spare him from execution. In 1996, he and another man
abducted Eric Nesbitt, 21, an airman from Langley Air Force Base, forced him
to withdraw money from an A.T.M. and then shot him eight times, killing him.

He will be one of the first death row inmates to have a jury trial on the
question of whether he is retarded. The jury's decision will determine
whether his life will be spared.

Mr. Atkins's more recent scores should be discounted, a clinical
psychologist who tested him in 1998 and 2004 said, because they are the
result of "a forced march towards increased mental stimulation" provided by
the case itself.

"Oddly enough, because of his constant contact with the many lawyers that
worked on his case," the psychologist, Dr. Evan S. Nelson, wrote in a report
in November, "Mr. Atkins received more intellectual stimulation in prison
than he did during his late adolescence and early adulthood. That included
practicing his reading and writing skills, learning about abstract legal
concepts and communicating with professionals."

In helping put an end to the death penalty for the mentally retarded, then,
Mr. Atkins could have ensured his own execution.

Prosecutors say that Mr. Atkins has never been retarded and that the recent
tests confirm it. "I don't see how a 76 is exculpatory and evidence of
mental retardation," Eileen M. Addison, the commonwealth's attorney here,
said in court on Thursday. "It needs to be under 70."

Ms. Addison has said that Mr. Atkins's crime also proves that he is not
retarded. In an interview last year, she said that his ability to load and
work a gun, to recognize an A.T.M. card, to direct Mr. Nesbitt to withdraw
money and to identify a remote area for the killing all proved that Mr.
Atkins is not retarded.

"I don't believe the truly mentally retarded commit these kinds of crimes,"
she said last year. She did not respond to recent messages seeking comment.

There are several other reasons that Mr. Atkins's scores may have risen.
I.Q. scores are rarely completely stable and can drift, though within a
relatively narrow range, typically by five points up or down. Psychologists
recognize that practice drives scores higher. And I.Q.'s tend to rise over
time, by about three points a decade.

Dr. Evans, the defense psychologist, concluded that "Mr. Atkins's 'true'
I.Q. is somewhere in the mid- to upper 60's."

Dozens of mentally retarded people have been released from death row as a
consequence of the Supreme Court's decision, under agreements and judicial
findings. Others will face trials like Mr. Atkins's. David M. Gossett, a
Washington lawyer who represents a death row inmate in a similar position in
Georgia, said incarceration itself may also have a positive effect on the
test scores.

"Prisons are highly structured and safe environments," Mr. Gossett said.
"They're sometimes good environments for the mentally retarded. These people
are not vegetables. They can learn. These are people who can get better at
taking tests."

In old cases and new ones, courts across the country have been struggling to
interpret the Supreme Court's decision. Seven states have passed new laws,
according to the Death Penalty Information Center.

They have adopted essentially the same definition of mental retardation,
requiring defendants to prove three things: that their I.Q. is below 70 or
75, that they lack fundamental social and practical skills, and that both
conditions existed before they turned 18.

Mr. Atkins was never tested as a youth, and so the jury will have to
consider how to look back using his test scores as a young adult.

The defense bears the burden of proving he is retarded, so the absence of
scores from when he was young and the relatively high current test numbers
may hurt his case.

"I don't know what you have before age 18," Judge Prentis Smiley Jr., of the
York County Circuit Court here, told Mr. Atkins's lawyers on Thursday.
"That's your problem."

The judge described a clear standard. "The issues are bright lights and
targeted with a bull's-eye," Judge Smiley said.

Richard Burr, who represents Mr. Atkins along with Joseph A. Migliozzi Jr.,

"For people real close to the edge, there is nothing easy about that," Mr.
Burr said. "There is going to be controverted evidence, subject to sharp
disputes and disagreements."

Jurors in Mr. Atkins's case, which will be tried this spring or summer, will
probably hear from mental health experts, teachers, family members,
classmates and, perhaps, victims of some of the 16 other felonies that Mr.
Atkins committed when he was 18 in what Dr. Nelson called a four-month crime
spree. He dropped out of high school that year, his third attempt to pass
the tenth grade.

Virginia's handling of mental retardation in capital cases is relatively
unusual. In new cases, juries in this state do not reach the question until
after they have convicted the defendant. Many other states have a judge
decide the issue before trial.

Judge Smiley said he planned to tell jurors that Mr. Atkins was convicted
and sentenced to death. He will also allow prosecutors to dismiss jurors who
say they oppose the death penalty in all circumstances.

Mr. Atkins's lawyers asked the Virginia Supreme Court to reverse those
rulings. On Wednesday, that court declined to hear the case.

"This proceeding has veered off the course of fairness," Mr. Burr told Judge
Smiley on Thursday. "We want to have the opportunity to prove that Daryl
Atkins is mentally retarded."

Mr. Atkins nodded in agreement.

Copyright 2005 The New York Times Company