It's been nearly two years since the US Supreme Court banned the execution of mentally retarded people, claiming that America's "evolving standards of decency" no longer tolerate such activity.
But the high court didn't provide the nation with a clear definition of mental retardation, a problem that many death-penalty experts say has left states to grapple with the issue on their own.
In some states, it is the lawmakers who have provided that definition. In others, the courts have. But many states have yet to agree on what constitutes mental retardation in capital-murder cases and rely on their old inconsistent methods of determination - keeping scores of mentally retarded people on death row indefinitely.
Two recent Texas cases show just how slowly the process is moving in these states - even when psychologists agree that solid evidence of mental retardation exists.
• Last week, a federal judge granted a 60-day reprieve to a schizophrenic death-row inmate - one day before his execution - so that the trial court could make a final determination of his competency. Prosecutors argue that the man should be put to death because he was sane at the time of the murders.
• Two weeks ago, the Harris County District Attorney recommended that an inmate's death sentence be commuted to life in prison - only after the state's psychologist agreed that the man was mentally retarded. It marks the first time a Texas prosecutor has made such a recommendation since the Supreme Court's ruling.
Prior to Atkins v. Virginia, the case that led to the landmark decision, 18 states forbade the execution of those with mental retardation. Since then, seven states have enacted similar laws and provided lawyers with a way to determine mental retardation. But 13 of the 38 death-penalty states have no such law or means to sort out who is mentally retarded.
In Texas, the legislature was unable to come to a consensus on the issue in its past session, leaving the process up to the courts and dueling expert witnesses.
"Various states have been, in different ways, addressing the issue of people on death row with mental retardation. And some states have done a better job than others," says David Elliot, executive director of that National Coalition to Abolish the Death Penalty. "But states like Texas have been truly remiss in not developing a strategy for measuring the claims of mental retardation."
A year before Atkins was decided, the Texas Legislature passed a bill that would have done just that. But Gov. Rick Perry vetoed it, calling it unnecessary because, he said, "We do not execute mentally retarded murderers today."
BUT since the Supreme Court's decision, the state Court of Criminal Appeals has ruled that almost 30 Texas death-row inmates are entitled to hearings on whether they meet the standards set down in Atkins.
"It's going to be up to defense lawyers to raise these issues, because prosecutors certainly aren't going to pull all their mentally ill cases and make sure they pass constitutional muster," says Danny Easterling, a Houston defense attorney who brought such a case before the Court of Criminal Appeals.
His client, Robert Smith, received a death sentence for the 1990 murder of James Michael Wilcox, whom he shot while fleeing after a clothing store robbery in Houston.
After the Atkins ruling, Mr. Easterling hired a psychologist to evaluate Mr. Smith, and the Harris County District Attorney's office did the same. Both psychologists reached the same conclusion: that Smith - who has an IQ of 63 and reads at a third-grade level - was mentally retarded.
It was the first time such an agreement had been reached in Texas; The other cases are pending, with hired experts waiting to debate their findings from the witness stand. But even though he recommended commutation to the state Board of Pardons and Paroles, Harris County District Attorney Chuck Rosenthal says he considers Smith's a "borderline" case.
"I didn't have any choice in recommending commutation since my own expert found him mentally retarded. But here's a guy who was shrewd enough to use aliases, who drove a car, and did a lot of things mentally retarded people don't normally do," says Mr. Rosenthal.
The American Association of Mental Retardation defines people with mental retardation as having an IQ under 70 and the inability to learn repetitive tasks.
When ruling in June 2002, the Supreme Court remained consistent with medical definitions of mental retardation and suggested that such a finding requires that defendants have subaverage intellectual functioning and significant limitations in adaptive skills, and that the deficiencies manifest before age 18.
"I don't think there has been a massive acknowledgement that we've been putting the severely retarded on death row, but I do believe prosecutors have become more discriminating - in the good sense of that word - of whom they put on death row," says Joshua Marquis, on the board of the National District Attorney's Association.
For his part, Rosenthal - sporting black cowboy boots and a white mustache - says defense attorneys are raising the issue of mental retardation in every case now.
"I think Atkins is a flawed decision and really doesn't give much guidance as to what to do," he says. "And since the legislature won't give us [a definition of mental retardation], we just to have to fly by the seat of our pants."