Atkins v. Virginia held that governments could not execute the mentally retarded (Sep. 29, 2003), and now activists who would protest the idea that testing could be used to track educational results because they give results too low for racial minorities are objecting that the same tests are resulting in scores too high for death row inmates. Daryl Atkins was intelligent enough to abduct Air Force man Eric Nesbitt, force him to withdraw money from an ATM, take Nesbitt to a remote area and then shoot him eight times, killing him, but his lawyers protest he’s too retarded to be executed. (Adam Liptak, New York Times, Feb. 6). Last week, the California Supreme Court has established rules guaranteeing that any decision in that state will require a great deal of litigation. (Bob Egelko, “Judging if a killer is retarded”, San Francisco Chronicle, Feb. 11; Claire Cooper, “Rules set for death row claims”, Sacramento Bee, Feb. 11).