The StandDown Texas Project

DSM-5 News & Commentary Roundup

ReutersLegal posts, "Psychiatrists unveil their long-awaited diagnostic 'bible'," by Sharon Begley.  It's an excellent overview of the debate raging over the new publication.

The long-awaited, controversial new edition of the bible of psychiatry can be characterized by many numbers: its 947 pages, its $199 price tag, its more than 300 maladies (from "dependent personality disorder" and "voyeuristic disorder" to "delayed ejaculation," "kleptomania" and "intermittent explosive disorder"), each limning the potential woes of being human.

But to the psychiatrist who shepherded the tortuous creation of the "Diagnostic and Statistical Manual of Mental Disorders," perhaps the single most important number is the "5" in its title: This is the DSM-5, not the DSM-V.

That may seem like a cosmetic change, but the American Psychiatric Association, which will release the book on Saturday at its annual meeting, decided to use Arabic instead of Roman numerals because "we want it to be a living document," said Dr David Kupfer of the University of Pittsburgh, the chairman of the task force that produced the DSM-5. Rather than waiting another generation to revise the manual - the DSM-IV was published in 1994 - psychiatrists will regularly update it with, for example, findings from genetics and neuroscience, labeling the revisions DSM-5.1 and DSM-5.2 and so on.

"We used '5' because V.0 and V.1 just don't look good," said Kupfer.

The fact that the world's most powerful psychiatrists (their decisions determine what counts as a mental disorder, and thus what insurers cover and which children receive special services in school) are already building in ways to change the manual is commendable, even its critics say.

"Lawyers worry new measure of mental retardation could prompt more executions," by Elizabeth Dilts is also from ReutersLegal.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work. Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."

The Sunday New York Times Week in Review published the OpEd, "Why the Fuss Over the D.S.M.-5?"  It's by Sally L. Satel, M.D.

LATER this month, the American Psychiatric Association will unveil the fifth edition of its handbook of diagnoses, the Diagnostic and Statistical Manual of Mental Disorders. Fourteen years in the making, the D.S.M.-5 has been the subject of seemingly endless discussion.

The charges are familiar: the manual medicalizes garden-variety distress, leads doctors to prescribe unnecessary medications, serves as a cash cow for the association, and so forth.

But many critics overlook a surprising fact about the new D.S.M.: how little attention practicing psychiatrists will give to it.

There are dozens of revisions in the D.S.M. — among them, the elimination of a “bereavement exclusion” from major depressive disorder and the creation of binge eating disorder — but they won’t alter clinical practice much, if at all.

This is because psychiatrists tend to treat according to symptoms.

So why the fuss over D.S.M.-5? Because of the unwarranted clout that its diagnoses carry with the rest of society: They are the passports to insurance coverage, the keys to special educational and behavioral services in school and the tickets to disability benefits.

 

The New York Times also has news coverage, "Psychiatry’s Guide Is Out of Touch With Science, Experts Say," reported by Pam Belluck and Benedict Carey.

Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific “lack of validity.”

The expert, Dr. Thomas R. Insel, director of the National Institute of Mental Health, said in an interview Monday that his goal was to reshape the direction of psychiatric research to focus on biology, genetics and neuroscience so that scientists can define disorders by their causes, rather than their symptoms.

While the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M., is the best tool now available for clinicians treating patients and should not be tossed out, he said, it does not reflect the complexity of many disorders, and its way of categorizing mental illnesses should not guide research.

“As long as the research community takes the D.S.M. to be a bible, we’ll never make progress,” Dr. Insel said, adding, “People think that everything has to match D.S.M. criteria, but you know what? Biology never read that book.”

The revision, known as the D.S.M.-5, is the first major reissue since 1994. It has stirred unprecedented questioning from the public, patient groups and, most fundamentally, senior figures in psychiatry who have challenged not only decisions about specific diagnoses but the scientific basis of the entire enterprise. Basic research into the biology of mental disorders and treatment has stalled, they say, confounded by the labyrinth of the brain.

"DSM, NIMH on mental illness: both miss relational, historical context of being human," is by Claudia M Gold for the oston Globe Child in Mind blog.

It seems that the National Institute of Mental Health (NIMH) may have dealt a death blow to the recently published Diagnostic and Statistical Manual of Mental Disorders (DSM 5) when the organization declared they would no longer fund research based on the DSM system of diagnosis. The views of NIMH director Thomas Insel were referenced in the recent New York Times article on the subject.

And:

I am no fan of the DSM system, which reduces complex experience to lists of symptoms; focusing on the "what" rather than the "why."  However, the NIMH model has limits as well. There seems to be a wish to study mental illness in the same way we study cancer or diabetes. While I certainly have great respect for the complexity of the pancreas, or the process of malignant transformation of cells, trying to understand the brain/mind in an analogous way seems to be an unnecessary and even undesirable reduction of  human experience.

What is missing from both paradigms is recognition of the relational and historical context of being human.

Earlier coverage of the DSM-5 begins at the link.

Jordan Smith on the Case of Jeffrey Williams

"New Appeal Argues Ineffective Defense," is by Jordan Smith at the Austin Chronicle.

It was 9:07pm on May 19, 1990 when undercover Houston Police Officer Troy Blando ran a check through the mobile data terminal in his unmarked Jeep Cherokee, looking for history on a Lexus he spotted driving into the parking lot of the Roadrunner Motor Inn while he was out on the beat, hunting for stolen cars. Just about two minutes later, he activated the MDT's emergency assistance button; he'd been shot, and needed help. Blando did not survive.

Police quickly arrested Jeffrey Williams, who said he'd been getting out of the Lexus in question – a car that he had stolen. Williams told police that he'd shot Blando in self-defense. Blando had approached him with his gun drawn, and Williams didn't know he was an officer, he said. Blando called him names and tried to cuff him, he told police. Williams pulled a gun, as did Blando, according to court records. Both fired; Blando was shot in the chest. The police found Williams near the scene of the crime. He was still wearing a single handcuff on his wrist. In February 2000, Williams was convicted of murdering Blando and was sentenced to death.

Williams has raised a number of points on appeal – including that he is mentally disabled, and that his lawyer, well-known Houston capital attorney Donald Davis, who was disbarred several months after Williams was convicted and then committed suicide several weeks later, failed to do any investigation into Williams' history of mental health issues

The article notes that Williams has a May 15 execution date.

Andrew Cohen Updates the Warren Hill Case

"Executing the Mentally Handicapped - Is Illegal - Except When it Isn't," is Andrew Cohen's latest post at the Atlantic.

It rarely registers as news anymore when a federal appeals court denies a request for relief made by a death row inmate. It happens all the time, every week, in every jurisdiction that still recognizes capital punishment as a sentencing option. But there is nothing typical about what two federal judges of the 11th U.S. Circuit Court of Appeals did Monday in denying relief to Warren Lee Hill, a mentally ill capital defendant in Georgia who came within hours of being executed earlier this year.

By a vote of 2-1, over a sharp dissent, the 11th Circuit panel refused to allow Hill's attorneys to pursue their claim that Hill is mentally retarded* beyond a reasonable doubt and thus cannot be put to death under both Georgia law and the United States Supreme Court's ruling in Atkins v. Virginia (a 2002 decision which declared such executions to be a form of "cruel and unusual" punishment under the Eighth Amendment). Here is the link to the 11th Circuit ruling. The Atlantic's previous coverage of this case is found in the "More On" box on the right.

What makes this result so extraordinary -- and so unnerving to many who follow capital cases -- is the rationale employed by the court in turning down Hill's request. The 11th Circuit employed an argument that turns on its head the very essence of judicial review. Yes, there was relevant new evidence that Hill is mentally retarded, the judges acknowledged, but that new evidence didn't create a new "claim." And since there was no new "claim," they concluded, Congress precluded them from allowing Hill's evidence to be evaluated on its merits.**

"Court Lifts Execution Stay; State Out of Lethal-Injection Drugs," is Bill Rankin's updated Atlanta Journal-Constitution report.

The court’s decision means the state can set a new execution date for Hill at any time. But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.

“At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan wrote in an email.

Hill’s case attracted international attention when three state experts who previously testified Hill was faking his mental disability came forward to say they had been mistaken. The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded. The U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

In a strong dissent, Judge Rosemary Barkett said there is now “no question” that Georgia will be executing a mentally retarded man. She noted that the seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.

“The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

The expanded AP report is, "Appeals court lifts stay of execution for Ga. man," by Kate Brumback.  It's via NECN.

Like many death penalty cases, Hill's has had a long and complicated journey through the legal system, including two last-minute stays of execution.

The 11th Circuit panel granted a stay in February after Hill's lawyers argued he was eligible for reconsideration in federal court because three doctors who had testified in 2000 that Hill was not mentally disabled provided statements in February saying they had changed their opinions and now believe he is.

Georgia passed a law in 1988 prohibiting the execution of mentally disabled death row inmates, and the U.S. Supreme Court ruled in 2002 that the execution of mentally disabled offenders was unconstitutional. But Georgia also has the strictest-in-the-nation standard for death-row inmates seeking to avoid execution, requiring them to prove their mental disability beyond a reasonable doubt. The state of Georgia has long argued that Hill's lawyers have failed to do that.

In filings with the 11th Circuit, the state said the doctors' new statements were not credible and also argued Hill was procedurally barred from asking a federal court to reconsider his case.

In the majority opinion, Circuit Judge Frank Hull writes that the court recognizes Hill has submitted new evidence to support his claims but says the core argument — that Hill is mentally disabled and therefore shouldn't be executed — remain the same. The 11th Circuit and other courts have repeatedly held that new evidence and new legal arguments in support of a prior claim aren't enough to overcome the statutory bar on repeat petitions.

"If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony," Hull writes.

Hill's claim also doesn't meet exceptions to the requirements that would allow reconsideration by a federal court, Hull writes.

The U.S. Court of Appeals for the Eleventh Circuit ruling in In Re: Hill is available in Adobe .pdf format.

Earlier coverage of Warren Hill's case begins at the link.

Mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

11th Circuit Lifts Warren Hill's Stay of Execution

The U.S. Court of Appeals for the Eleventh Circuit ruling in In Re: Hill is available in Adobe .pdf format.

"Court denies Hill’s bid to halt execution," is Bill Rankin's report for the Atlanta Journal-Constitution.

The federal appeals court in Atlanta has denied Warren Hill’s bid to halt his execution on grounds he is mentally retarded.

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals said Hill’s claim challenged only his eligibility for a death sentence and not whether he is guilty of murder. For this reason, Hill cannot clear the narrow “actual innocence” exception that allows capital inmates to raise new claims after prior appeals had been exhausted, Judge Frank Hull wrote.

Judge Rosemary Barkett issued a stinging dissent.

“There is no question that Georgia will be executing a mentally retarded man because all seven mental health experts who have ever evaluated Hill, both the state’s and Hill’s, now unanimously agree that he is mentally retarded.”

"Federal appeals court lifts stay of execution for Ga. man, clears way for new execution date," is the AP report, via the Republic.

The 11th U.S. Circuit Court of Appeals stepped in at the last minute to temporarily block Warren Lee Hill's execution in February. The court said it wanted to consider Hill's arguments that a federal court should reconsider his case.

In an opinion published Monday, the 11th Circuit says Hill's claim of mental disability was presented in an earlier petition and can't be presented again. The circuit judges also say Hill's claim only challenges his eligibility for the death sentence, not his underlying guilt, making him ineligible for reconsideration.

Hill's lawyers asked for reconsideration based on new doctor statements regarding his mental disability.

Warren Hill's attorney, Brian Kammer, has just issued the statement, "in Response to Eleventh Circuit Denial."  Here's the full text:

“We are deeply disappointed that the 11th Circuit United States Court of Appeals found that procedural barriers prevent them from considering the compelling new evidence in Warren Hill’s case. The new evidence shows that every mental health expert ever to examine him finds that Mr. Hill has mental retardation and is thus ineligible for execution according to the constitution of the United States.

We came before this court with important new evidence – that three doctors who previously testified on behalf of the state, upon further review of Mr. Hill’s complete records, now conclude that he has mental retardation. The diagnosis of mental retardation is now unanimous among all the doctors who have examined Mr. Hill.

As Judge Barkett notes in her dissent: "The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.... [The federal habeas statute] should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands.""

Earlier coverage of Warren Hill's case begins at the link.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Continued Controversy over Texas Mental Retardation Evaluations

The cover article of this week's Austin Chronicle is, "Smart Enough to Die," by Jordan Smith.It concerns Texas death row inmate Elroy Chester.  Here's an excerpt from this must-read:

When he was arrested, Chester confessed to Ryman's murder and to assaulting Erin and Claire in addition to a host of other crimes. Ultimately, he pleaded guilty to capital murder in connection with Ryman's death, forgoing a trial and instead leaving only his fate – death or, at the time, life in prison with the (very unlikely) possibility of parole – in the hands of a jury.

To say that Chester was a difficult client to defend would be an understatement; transcripts from the sentencing hearing reflect that Chester had little, if any, rapport with his defense counsel. Against the advice of his attorney, Chester opted to testify on his own behalf, delivering a rambling and inflammatory rant wherein he claimed variously that he hadn't acted alone in committing his many crimes, and that if sentenced to death he would have his "homeboys" on the outside commit additional crimes in his honor, and that he should've killed additional victims – including a 10-year-old who had survived his attack, and a police officer who had previously arrested him for burglary. He refused to allow his attorneys to present any witnesses that might help mitigate his culpability, says attorney Susan Orlansky, pro bono counsel from an Alaskan law firm, who currently represents him. "He doesn't get what's important," she says of Chester's ability in 1998 to grasp the gravity of his legal situation. "He tells his lawyer not to put on a mitigating case."

And that is a key issue, because Chester is mentally retarded, says Orlansky, a circumstance that should make him ineligible for execution, based on a 2002 decision by the U.S. Supreme Court barring execution of the mentally impaired as cruel and unusual punishment. "He has a compelling case for mental retardation," she says. "I think the evidence is, essentially, undisputed." (Although the term "mentally retarded" is steadily being replaced by "intellectually disabled" in the general lexicon, it remains the standard term in matters of criminal liability.)

Chester repeatedly scored below 70 on IQ tests – the generally accepted upper limit for mental impairment; spent almost his entire childhood in special education classes; never learned to read, to shop or cook, or to live on his own, or even to distinguish among colors, according to court testimony; and was placed in the Texas Department of Criminal Justice's Mentally Retarded Offenders Program during his previous stays in the pen. Nonetheless, the courts have repeatedly determined that Chester has not proven he is mentally retarded, and is thus eligible for execution – a sentence the state intends to carry out on April 24.

Elroy's execution date has been rescheduled, too late for the Chronicle's print deadline.  "Elroy Chester execution date moved to June," is the Port Arthur News report by Mary Meaux.

The execution date for Port Arthur mass murderer Elroy Chester has been pushed back 60 days.

Chester was scheduled for execution April 24. His new date is June 12, Waylon Thompson, with the Jefferson County District Attorney’s office, said.

Thompson said the reason for the delay was due to a paperwork issue. A new transfer order and death warrant have been issued and the Attorney General’s office as well as other parties involved are agreeable with.

Earlier coverage of Texas' process for examining claims of mental retardation begins at the link.  Related posts are in the mental retardation category index.

As Jordan points out in her article, mental retardation is now generally referred to as a developmental or intellectual disability.  Because MR has a specific meaning with respect to capital cases, I continue to use the older term at this website. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Ohio AG Issues Annual Capital Crimes Report

The Ohio Attorney General's 2012 Capital Crimes Annual Report is available in Adobe .pdf format.

"Annual report: more than third of death row inmates have avoided sentence since 1981," is the AP filing, via the Republic.

An annual report that looks at Ohio's capital punishment system says 128 inmates sentenced to death over the past three decades have avoided their sentence through court action, commutations or dying of natural causes.

The report by Attorney General Mike DeWine says the state sentenced a total of 316 inmates to death from 1981, when Ohio's current death penalty law was enacted, through 2012.

Eighteen inmates have been spared by Ohio governors, 24 died in prison and eight were found ineligible for execution because they are mentally disabled.

The report released Tuesday says six inmates face re-sentencing and 72 others had their death sentence reversed by various courts.

The state has put 50 inmates to death since executions were resumed in 1999.

"Capital punishment: Four slated for execution this year," is by Alan Johnson for the Columbus Dispatch.

The case of Ohio Death Row inmate Warren Waddy of Columbus illustrates why some people are frustrated with capital punishment.

Waddy, 59, has been on Death Row for 9,300 days — more than 25 years — since his conviction for strangling 22-year-old Paula Mason of Columbus with a jump rope after breaking into her apartment, tying her up, and beating her. Ronald Reagan was president at the time.

But Waddy’s case appears to have no resolution in sight. It is one of four cases cited in Attorney General Mike DeWine’s annual Capital Crimes report, released yesterday, as being held up in court due to claims that they should not be executed because of mental retardation. The case has cleared state courts, but layers of federal appeals remain untapped after a quarter-century of litigation.

DeWine’s report, which must be submitted by April 1 to the governor and state legislators, noted that five new death sentences were handed down in Ohio courts last year, including one for Caron E. Montgomery of Franklin County.

And:

The report said there have been 18 commutations since 1991, including four by Kasich, five by former Gov. Ted Strickland, one by Gov. Bob Taft, and eight by Gov. Richard F. Celeste. In recent years, 23 Death Row inmates died of natural causes while awaiting execution.

Recent coverage from Ohio includes a stepped up search for lethal injection drugs following an execution and a meeting of the state's Joint Task Force to Review the Administration of Ohio's Death Penalty.

Coverage of the 2012 AGs report is at the link.

Texas Legislation Introduced to Correct Briseno Standards

Brandi Grissom reports, "Bill Would Limit Execution of Intellectually Disabled," at the Texas Tribune.  Here's the beginning:

Before Texas executed Marvin Wilson last year for the 1992 murder of Jerry Robert Williams in Beaumont, his case generated headlines, reminding the nation of a rather unique corner of death penalty law here.

The standards used to determine whether a Texan convicted of murder is mentally fit to be executed are based in part on the fictional character Lennie from John Steinbeck’s classic novel Of Mice and Men, a fact that enraged the author’s son.

"I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic,” Thomas Steinbeck said, calling for a halt to Wilson’s execution. “I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way."

State Sen. Rodney Ellis, D-Houston, said Wilson’s execution and other cases left him feeling embarrassed for his home state. “It’s junk science. Its not a credible way of making a decision,” he said.

So Ellis filed Senate Bill 750, which would establish new — and, he argues, more scientific — standards to determine when a convicted Texan is too intellectually disabled to face the death penalty. The bill revives a decade-old fight with prosecutors, who argue that the current standards are adequate and that Ellis’ proposal would make it too easy for defendants to make a case that they are mentally retarded and exempt from the death penalty.

Coverage of Marvin Wilson's Development Disability and his execution begins at the link.  Related posts are in the mental retardation category index.

Some notable posts include:

• How Texas Applies Atkins
• Bad Science Behind Unconstitutional US Executions
• Texas's Death Penalty Machine Executing the Mentally Disabled?
• The Long, Questionable History of George Denkowski
• Cracked

Mental retardation is now generally referred to as a developmental or intellectual disability.  Because MR has a specific meaning with respect to capital cases, I continue to use the older term at this website. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. 

The R Word

"A Word Gone Wrong," is a Sunday New York Times editorial written by Lawrence Downes.

This Wednesday is the fifth annual “day of awareness” in a national campaign to stop the use of the word “retarded” and its variants. As a medical label for people with intellectual and developmental disabilities, the R-word used to be neutral, clinical, incapable of giving offense. But words are mere vessels for meaning, and this one has long since been put to other uses.

“Retarded” and “retard” today are variations on a slur. Young people especially like it: as a weapon of derision, it does the job. It’s sharp, with an assaultive potency that words like “moron” and “idiot” lost sometime in the days of black-and-white TV.

The campaign against it, called “Spread the Word to End the Word,” is heartfelt and earnest in a way that makes it vulnerable to ridicule. I know people who care about language who do not see themselves as heartless and who do not see “retardation” as anything to get worked up about. To them, banishing the R-word for another clinical-sounding term is like linguistic Febreze: masking unpleasantries with cloying euphemisms.

Mental retardation is now generally referred to as a developmental or intellectual disability, as noted above; a person has mental retardation, in the same usage that a person has any other medical condition.  Because MR has a specific meaning with respect to capital cases, I continue to use the older term at this website, but not in normal conversation.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Editorial Roundup - Florida & Georgia Newspapers Speak Up

In Florida the Lakeland Ledger publsihes the editorial, "Florida's Death Penalty: Fix It, Don't Rush It."  It's also available at the Florida News Chief.

The fact that some Florida death sentences take decades to carry out is surely frustrating for families of murder victims.

In December, Florida executed Manuel Pardo for committing nine murders during a 1986 crime spree. He accepted blame for most of the killings and even asked for the death penalty.

So why take 26 years to carry out the sentence in a clear-cut case?

There are plenty of other examples of wrongful convictions that result in death sentences.

When the state executes the wrong person, there's no making up for the mistake.

That's why there is reason to be wary of state Rep. Matt Gaetz's call to speed up executions. Gaetz, a Fort Walton Beach Republican who chairs the House Criminal Justice Subcommittee, has said that long delays in carrying out executions show that Florida has a broken death-penalty system.

He's right about the system being broken — but not only in the way that he suggests.

Last year, Florida ranked No. 1 in death sentences imposed. The state also has the dubious distinction of exonerating more death-sentenced inmates than any other state since 1973, reports the Death Penalty Information Center.

Georgia's Athens Banner-Herald publishes, "State death penalty law needs change."  It was originally published by the Savannah Morning News.

Georgia is the only state in the nation that requires death penalty defendants to prove they are mentally disabled beyond a reasonable doubt to avoid execution.

In theory, this legal standard prevents stone-cold killers from faking disabilities to escape justice under Georgia law. That sounds logical.

But in practice, it can put the courts and mental health professionals in unenviable positions that a King Solomon couldn’t properly adjudicate.

That’s why state lawmakers should take a look at this law — and the ongoing case of Warren Lee Hill — and consider changing it.

Hill, 52, literally got a last-minute stay of execution Feb. 19 by the 11th U.S. Circuit Court of Appeals. He was being prepared for lethal injection when two of three federal judges said further review is needed of recent affidavits by doctors who changed their minds about Hill’s mental capacity.

And:

The root of the problem is that psychiatric diagnoses are subject to a degree of uncertainty. Existing Georgia law refuses to recognize this reality.

Legally speaking, this law stands up to scrutiny. State and federal courts have upheld it. But practically speaking, it leaves no wiggle room for cases that seem borderline.

Earlier coverage from Florida and earlier coverage of Warren Hill's case begins at the links.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Supreme Court Refuses to Vacate Warren Hill's Stay

The Atlanta Journal-Constitution posts the AP breaking news report, "Warren Hill stay of execution stands."

The U.S. Supreme Court denied the Georgia attorney general’s request to lift a stay of execution a federal appeals court issued less than an hour before Warren Hill was to have been executed Tuesday evening for a 1990 murder.

The justices in Washington offered no reason, simply writing Thursday that the application to vacate the stay was denied.

A panel of the 11th U.S. Circuit Court of Appeals voted 2-1 Tuesday to stop Hill’s execution to consider his appeal based on “new evidence” that the experts who testified in 2000 that he was not mentally retarded and was eligible for the death penalty had now changed their opinions. A psychiatrist and two psychologists who worked for the state recently told Hill’s lawyer that they had been rushed to make an evaluation 13 years ago, that they are now more experienced than they were then and there had been advances made in the profession’s understanding of mental retardation.

Today's Supreme Court Orders List is available in Adobe .pdf format.

Hill's attorney, Brian Kammer, has just released the following statement:

“The Eleventh Circuit briefing schedule will now be followed over the next month to determine whether Mr. Hill can litigate a second federal habeas action on his claim of mental retardation given the newly available evidence which establishes consensus among every doctor who has evaluated Mr. Hill that he is mentally retarded.”

Earlier coverage of Warren Hill's case begins at the link.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

More on Warren Hill's Stay of Execution

"Georgia asks US Supreme Court to vacate execution stay," is the AP report, via the Fulton County Daily Report, part of the Law.com network.

The state of Georgia is asking the U.S. Supreme Court to vacate a federal appeals court order temporarily halting the execution of a death row inmate.

The 11th U.S. Circuit Court of Appeals on Tuesday issued a stay less than an hour before Warren Lee Hill was set to die by lethal injection. The court's order said further review is needed of recent affidavits by doctors who changed their minds about Hill's mental capacity.

Lawyers for Georgia on Wednesday said Hill's federal petition for habeas relief is procedurally barred and said the new statements from the doctors aren't credible.

There is also a great deal of news and commentary on the stays of execution issued by both the U.S. Court of Appeals for the Eleventh Circuit and the Georgia Court of Appeals.

ReutersLegal posts, "Georgia inmate called 'mentally retarded' granted stays of execution," by David Beasley.

Brian Kammer, one of Hill's attorneys, said the execution would be temporarily halted after the stays granted by the 11th Circuit Court of Appeals and the Georgia Court of Appeals.

The federal court decision came in response to appeals by Hill's lawyers arguing he is mentally retarded, Kammer said. The decision by the Georgia state court followed a legal challenge over the state's method of executing Hill by lethal injection, he said.

"We are greatly relieved that the Eleventh Circuit Court of Appeals has stayed the execution of Warren Hill, a person with mental retardation," Kammer said in an emailed statement.

"All the doctors who have examined Mr. Hill are unanimous in their diagnosis of mental retardation," he said.

In 1988, Georgia became the first U.S. state to enact a law banning the execution of mentally retarded defendants. But according to death penalty experts, Georgia has perhaps the toughest standard in the nation for defining mental retardation, requiring proof "beyond a reasonable doubt."

"Warren Hill's second stay of execution: 'this is the cruellest thing imaginable'," is by Ed Pilkington for the Guardian

At 6pm on Tuesday night Warren Hill was given a dose of the drug Ativan. A benzodiazepine, it is known for its potency in alleviating anxiety; at that point Hill believed he had just one hour to live.

At 5pm that evening Hill had been offered the chance to make a final statement, which he declined, and an hour before that he had been presented with a last meal of mac and cheese, baked beans, stir-fry vegetables, cornbread, cookies and iced tea. He chose not to eat a morsel of it.

Two weeks ago Hill, an intellectually disabled man who has displayed symptoms of impaired mental capacity since he was a child, was served a warrant for his execution. The sentence, to be carried out 21 years after he was put on death row, was timed for 7pm on Tuesday.

He had been through it all before. Last July he was offered his final meal, the right to make a final statement, and a dose of Ativan before the courts intervened and granted a stay of execution 90 minutes before his scheduled ending.

Slate posts, "Georgia Came Within 30 Minutes of Executing a Mentally Disabled Inmate Last Night," by Abby Ohlheiser.

"Georgia death row execution of inmate Warren Hill delayed at last minute," from AFP.

"Georgia Almost Executed a Mentally Disabled Man Last Night," by Adam Clark Estes at the Atlantic Wire.

"Mentally disabled man granted last minute stay of execution," by Natasha Lennard for Salon.

Today's Washington Square News publishes the editorial, "Warren Hill case re-engages debate on practicality of death penalty."

The debate over the death penalty in the United States has long been part of the national dialogue. However, media attention over the controversial aspects of Georgia inmate Warren Lee Hill’s case has recently intensified the debate.

And:

The nature of this case is particularly interesting. Hill has been proven to have intellectual disabilities, and the Supreme Court considers execution of the mentally challenged unconstitutional, as decided in Atkins v. Virginia in 2002. However, the Court left the precise definition of what qualifies mental retardation up to the states. Georgia has the strictest standard of any state on this issue, requiring proof of retardation beyond a reasonable doubt.

Whether the death penalty is morally justified is another question. In Europe, there is little debate over the death penalty, as its abolition is a basic requirement for European Union membership. Beyond Europe, most developed countries — with the notable exception of Japan — have done away with the death penalty. Perhaps the American position presents a fundamental cultural difference or an archaic tradition in regard to mental illness in these cases and the death penalty in general. Someday, that will have to change.

Earlier coverage of Warren Hill's case begins at the link.

 

11th Circuit Stays Warren Hill Execution

"Georgia Execution Halted at the Last Minute," is the AP post filed by Kate Brumback.

The execution of a Georgia man who killed a fellow prisoner in 1990 was halted Tuesday at the last minute so courts could consider claims that he's mentally disabled and other issues.

The 11th U.S. Circuit Court of Appeals granted its stay of execution as 52-year-old Warren Lee Hill was being prepared for lethal injection. In a 2-1 decision, a panel of the appeals court said further review is needed of recent affidavits by doctors who changed their minds about Hill's mental capacity.

"In other words, all of the experts - both the State's and the petitioner's - now appear to be in agreement that Hill is in fact mentally retarded," judges in the majority wrote in their order.

The state court of appeals also issued a stay to allow more time to consider a challenge related to the state's lethal injection procedure.

Earlier in the day, the state parole board, the Supreme Court of Georgia and the U.S. Supreme Court had all declined to stop the execution.

"We are greatly relieved that the Eleventh Circuit Court of Appeals has stayed the execution of Warren Hill, a person with mental retardation. All the doctors who have examined Mr. Hill are unanimous in their diagnosis of mental retardation," defense attorney Brian Kammer said in an email.

"Hill granted stays of execution," is by Bill Rankin for the Atlanta Journal-Constitution.

Condemned killer Warren Hill has been granted stays of execution by the federal appeals court in Atlanta and the Georgia Court of Appeals, his lawyer said Tuesday.

After the court rulings, the Department of Corrections said there would be no execution Tuesday night.

Hill was scheduled to be put to death at 7 p.m. He had already taken a sedative to prepare for his execution. The decision to halt his execution were announced with less than an hour to spare.

The state Court of Appeals granted a stay on a challenge to the state’s lethal-injection procedure. The 11th U.S. Circuit Court of Appeals granted the stay on claims by Hill he is mentally disabled and thus ineligible for execution, Brian Kammer, Hill’s lawyer, said.
Earlier Tuesday, the State Board of Pardons and Paroles denied clemency to Hill, rejecting pleas that he be spared execution on claims he is mentally retarded.

The parole board’s decision was issued shortly after the state Supreme Court voted 5-2 to deny Hill a stay of execution.

Andrew Cohen posts, "Warren Lee Hill, and His Cause, Live to Fight Another Day," at the Atlantic.

Condemned Georgia prisoner Warren Lee Hill came within 30 minutes of being executed Tuesday night -- came within 30 minutes of becoming a reluctant martyr to a constitutional principle the United States Supreme Court first announced in 2002 in a case styled Atkins v. Virginia: Thou shalt not execute the mentally retarded. He came that close -- already well into Georgia's death penalty protocol -- despite the fact that he is mentally retarded, and that every medical expert who has evaluated him since 1991 now says so.

You would think with the precedent established in Atkins, and with Hill's mental status now beyond any reasonable doubt, that the justices in Washington would have been eager to block the execution. But it wasn't the Supreme Court that came to Hill's rescue. The justices instead denied Hill's request for a stay. It is unclear tonight whether they did so because they have no interest in his cause, and thus no interest in defending Atkins; or because they were aware of two other stays issued around the same time.

On Tuesday evening, it was the 11th U.S Circuit Court of Appeals, primarily based in Georgia, which blocked Hill's execution so its judges could look more closely at the startling new facts about Hill's mental status which emerged last week. And it was a state appellate court in Georgia which also blocked the execution Tuesday night because the judges there want to look a little more closely at Georgia's lethal injection protocols. This after another Georgia court, and the state's pardons board, had earlier in the day refused to help Hill.

So, for now anyway, Hill will be spared. There will be no execution tonight. And now the burden is on Georgia officials to convince the judges of those two other courts -- one federal, one state -- to permit Hill's execution to proceed.

Earlier coverage of Warren Hill's case begins with the preceding post.  

More Press on Warren Hill as Deadline Nears

"Last Chance for Warren Lee Hill," is Lincoln Caplan's post at the New York Times Taking Note blog.

Last Friday, the lawyers asked the Georgia clemency board to review his case and presented the new evidence to a state trial judge in Georgia, in a plea for a stay of execution. On Monday, when the state trial judge dismissed the plea, the lawyers immediately appealed to the Georgia Supreme Court.

The state trial judge dismissed Mr. Hill’s plea because “the ‘new evidence’ does not establish a miscarriage of justice.” That’s exactly incorrect.

Mr. Hill’s fate is in the hands of the Georgia clemency board, the Georgia Supreme Court and the U.S. Supreme Court. They should remember that, in any other state, he would not be facing execution and that this is their last chance to prevent a grievous wrong.

The Georgia Supreme Court has rejected a stay this afternoon.  Hill's attorney, Brian Kammer issued the following statement:

“We are profoundly disappointed that Georgia’s Supreme Court has refused to stop tonight’s execution of Warren Hill, a person with mental retardation, which we believe is at odds with the Unites States Supreme Court’s protection of the mentally retarded. More than a decade ago, the U.S. Supreme Court ruled that persons with mental retardation must not be executed. As new affidavits in our recent petition show, Mr. Hill’s diagnosis of mental retardation is now unanimous among all the doctors who have examined him.

“The state of Georgia remains an extreme outlier in requiring that defendants prove they have mental retardation ‘beyond a reasonable doubt.’ This is the strictest standard in any jurisdiction in this nation. Even Warren Hill, a man with an I.Q of 70, who is diagnosed as mentally retarded by every doctor who has examined him, finds it impossible to meet this standard of proof. The U.S. Supreme Court must intervene in this case and prevent a mentally retarded man from being put to death tonight.”

Brian Kammer, attorney for Warren Hill

Laurel Bellows, the President of the American Bar Association, has issued a statement, "ABA President Calls for Stay of Execution for Warren Hill."

The Carter Center has also issued a statement from former President Jimmy Carter and his wife calling for a commutation of the death senctence due to Hill's mental retardation.

All eyes are now on the Georgia Board of Pardons and the Supreme Court.

Earlier coverage of Warren Hill's case begins at the link.

Georgia Judge Refuses to Reconsider Warren Hill's Mental Retardation

Today's Atlanta Journal-Constitution reports, "Execution of ‘mentally retarded’ Warren Hill still set for Tuesday."  It's written by Rhonda Cook.

With his execution set for 7 p.m. Tuesday, twice convicted murderer Warren Hill awaits word from the state Board of Pardons and Paroles on his second request for a reprieve even as public opinion from around the world is galvanizing in his favor after the experts who said he was mentally fit for execution have reversed their opinions.

“The board has received the petition from the representatives of Warren Hill and the matter is under review,” according to a statement from the Parole Board issued late Monday afternoon.

The board, most likely the only chance Hill has of avoiding lethal injection, is planning to spend much of Tuesday focusing on another execution planned for later in the week. Advocates for convicted murderer Andrew Cook and for his victims have appointments to meet with the Parole Board Tuesday morning.

All the while, worldwide media coverage has focused on Hill’s claims that he is mentally retarded, the phrase used in court filings, and it would be unconstitutional to execute him.

Several years ago, the U.S. Supreme Court banned executing the mentally retarded but left it to each state to set the standards for finding someone intellectually deficient. Georgia’s burden of proof is high — “beyond a reasonable doubt.”

And:

“The prospect of executing an intellectually disabled person is shocking to the conscience,” said Sara Totonchi of the Southern Center for Human Rights. “So it is not at all surprising that Mr. Hill’s case has once again generated a global response to Georgia’s horrific death penalty system.”

"Judge won't reconsider case of Georgia death row inmate," is the latest AP report, via the Athens Banner-Herald.

A state court judge on Monday declined to reconsider the case of a Georgia death row inmate set for execution this week.

Judge Thomas Wilson on Monday declined to consider a request for habeas relief for Warren Lee Hill, who's to be executed Tuesday. Hill's lawyer Brian Kammer on Friday had asked the judge to reconsider the case in light of new evidence.

Kammer has long argued that Hill is mentally disabled and therefore should not be put to death because the execution of mentally disabled offenders is prohibited by state law and a 2002 U.S. Supreme Court decision.

The state has consistently argued that Hill's defense has failed to prove beyond a reasonable doubt that he is mentally disabled. Hill's lawyers have said that burden of proof is virtually impossible to meet. But Georgia's strictest-in-the-nation standard for proving mental disability has repeatedly been upheld by state and federal courts.

And:

In his filings Friday, Kammer included sworn statements from the three doctors who examined Hill in 2000 and testified before the court that he was not mentally disabled. The doctors write in their new statements that they were rushed in their evaluation at the time and that they have acquired additional experience and there have been scientific developments in the intervening 12 years. All three reviewed facts and documents in the case and write that they now believe that Hill is mentally disabled.

CNN posts, "Georgia prisoner facing execution Tuesday," by Matt Smith.

Hill's lawyers have asked the U.S. Supreme Court to halt the execution, arguing that his IQ of 70 means he should be spared under the 2002 decision that barred the execution of the mentally retarded. But a string of state courts has said Hill doesn't qualify under Georgia law, which requires inmates to prove mental impairment "beyond a reasonable doubt."

Georgia is the only state with the reasonable-doubt standard, which Hill's lawyers call "a virtually insurmountable barrier" that flies in the face of the justices' 2002 decision.

"The U.S. Supreme Court says we don't put mentally retarded people to death, but we'll let the states determine who's retarded and who's not," CNN legal analyst Paul Callan said Monday.

Handspike's family has called for the execution to be called off, as have former classmates and school officials. The Georgia Council on Developmental Disabilities has weighed in against the execution, stating, "No other state risks the lives of those with developmental disabilities to this extreme."

Three doctors who examined Hill for the state "have now revised their opinions and find that Mr. Hill does meet the criteria for mental retardation," his lawyers argued in court papers.

"High Bar To Avoid Ga. Execution," by Joshua Stewart at Georgia Public Broadcasting.

Georgia and federal law prohibit executing “mentally retarded” defendants, and the case is highlighting Georgia’s strictest-in-the-nation standard for proving that.

State law requires mental disability is proven “beyond a reasonable doubt” – the highest bar to clear in the law. Georgia’s the only state with such a standard. Also unusual in Georgia’s law: jurors make the decision at the same time they decide guilt or innocence.

That complicates trial, said Russell Gabriel, a law professor at the University of Georgia and director of the school’s Criminal Defense Clinic.

“Because the definition of mental retardation includes not just an IQ score but also how the person was adapting to everyday life before the age of 18, it means this incredible range of events when they were a child is suddenly pulled into the regular part of the trial,” Gabriel said.

He said many states decide before the main trial if someone is mentally retarded. He also said Georgia’s tough standard is even tougher when you factor in human nature: a capital-murder-case jury probably won’t decide a defendant is mentally disabled.

Additional coverage includes:

"Georgia Set to Execute Man with IQ of 70 Today," by Tim Murphy at Mother Jones.

"Georgia Prepares to Execute Mentally Disabled Man," at Democracy Now.

"Georgia Is Scheduled To Execute An Intellectually Disabled Man Today," by Ian Millhiser for Think Progress.

Earlier coverage of Warren Hill's case begins at the link.

An Update on Warren Hill's Case

"Inmate’s lawyer asks judge to stay execution," is the AP report by Kate Brumback, via the Marietta Daily Journal.

Warren Lee Hill is set to be executed Tuesday. His lawyer, Brian Kammer, on Friday filed a renewed application for a clemency hearing with the Board of Pardons and Paroles and a petition for a writ of habeas corpus with the Butts County Superior Court.

Both the board and the court denied similar requests in Hill’s case before his original execution date in July. The state Supreme Court ended up staying the execution then to give itself time to hear a legal challenge filed by Hill’s lawyers. The high court earlier this month ruled against that challenge, clearing the way for the execution.

And:

In his filings Friday, Kammer includes sworn statements from the three doctors who examined Hill in 2000 and testified before the court that he was not mentally disabled. The doctors write in their new statements that they were rushed in their evaluation at the time and that they have acquired additional experience and there have been scientific developments in the intervening 12 years. All three reviewed facts and documents in the case and write that they now believe that Hill is mentally disabled.

Given that new evidence, Kammer asks the Board of Pardons and Paroles to stay the execution, reconsider its denial of clemency and commute Hill’s death sentence to life in prison without parole.

He asks the Butts County judge to grant a stay of execution and to grant habeas relief.

The article also notes that Hill's attorney has filed a stay motion with the U.S. Supreme Court over an issue with Georgia's lethal injection procedure.

The Atlantic posts, "In Georgia, Doctors Recant Testimony — But the Execution Will Go On," by Andrew Cohen.

Earlier this week, I wrote about Warren Lee Hill, the mentally retarded man who is scheduled to be executed next Tuesday in Georgia in defiance of the United States Supreme Court's 2002 decision in Atkins v. Virginia -- a ruling which declared that such executions violate the Eighth Amendment's prohibition against "cruel and unusual" punishment. The case has been a dubious one for years. This week it got even more outrageous.

From a clemency request filed Thursday with the Georgia Board of Pardons and Paroles, we now know that three of the state's experts who evaluated Hill in 2000 have just recanted their opinions about his mental status. This means that every doctor who has ever evaluated Hill since 1991, when he was given his first comprehensive evaluation, has concluded that he is mentally retarded -- and that no doctor who has ever evaluated him has concluded otherwise.

Despite this remarkable turn, and despite the fact that Hill's attorneys asked the Supreme Court days ago for a stay of execution, Hill remains just days away from being put to death by lethal injection because of an unconstitutional Georgia law, unreasonably applied against him because he has not yet met his burden of establishing his mental retardation beyond a reasonable doubt.

"Georgia lawyers rush to save 'mentally retarded' death row inmate," is by Ed Pilkington in the Guardian.

Lawyers are racing against the clock to save the life of a "mentally retarded" man in Georgia who is scheduled to be put to death on Tuesday despite a US supreme court ban on executing prisoners with learning disabilities.

The execution of Warren Hill at 7pm local time on 19 February would be the first completed death sentence in Georgia since that of Troy Davis. The 2011 judicial killing of Davis, in the wake of substantial evidence of his probable innocence, prompted an outpouring of disgust across America and the world.

Hill's impending death by lethal injection has so far failed to ignite the mass outrage that marked the Troy Davis killing, but close followers of the case protest that it would be equally disturbing and unconstitutional. Writing in the Guardian, the UN special rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, has said that "the world community is again watching Georgia with great concern as it prepares to carry out another grotesque and unjust execution."

"Mentally disabled US man faces execution Tuesday," is the AFP filing.

A mentally handicapped man is to be put to death in the US state of Georgia on Tuesday, despite protests from human rights activists and mental health advocates calling the execution a miscarriage of justice.

Warren Hill, a 52-year-old African American, is reported to have an IQ of 70, putting him below the threshold for mental disability.

"There is no dispute among the experts that Mr Hill is mentally retarded," attorney Brian Kammer wrote in an appeal seeking leniency for his client.

"Because Mr Hill's execution would be a fundamental miscarriage of justice, this Court must stay Mr Hill's imminent execution and vacate his death sentence," he added in another appeal.

And:

Human rights groups, as well as the United Nations Office of the High Commissioner for Human Rights, have condemned the impending execution, and called on authorities to commute the sentence.

"The world community is again watching Georgia with great concern as it prepares to carry out another grotesque and unjust execution," wrote UN special rapporteur Christof Heyns in a recent editorial. "There is no sense and no honor in executing children, the insane and those who suffer from intellectual disability."

Earlier coverage of Warren Hill's case begins at the link.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

News Release from Advocates for Warren Hill

Here's the full text of the news release:

Doctors Who Evaluated Death Row Prisoner for Georgia Now Say that Warren Hill has Mental Retardation
February 19th Execution Date Must Be Stopped, Say Advocates for People With Intellectual Disability

(ATLANTA, GEORGIA; Thursday, February 14) --- Affidavits from three doctors who had previously testified on behalf of the state regarding Warren Hill were released today affirming that Mr. Hill has mental retardation. In December 2000, at the request of the Georgia Attorney General’s Office, the doctors had examined Mr. Hill and testified at an evidentiary hearing that Mr. Hill did not fit the criteria for mental retardation, instead diagnosing him with borderline intellectual functioning. The doctors, Dr. Donald Harris, Dr. Thomas Sachy and Dr. James Gary Carter, now concur with all other doctors who have examined Mr. Hill and now find that Mr. Hill has mild mental retardation, placing Mr. Hill in the category of citizens protected from capital punishment by the 2002 United States Supreme Court decision Atkins v. Virginia.


In their affidavit testimony (links: Harris; Sachy; Carter), the doctors report that their initial evaluation of Mr. Hill was “extremely and unusually rushed” and “not conducive to an accurate assessment of Mr. Hill’s condition” (Carter p.2, 7) and that advances in psychiatric understanding of intellectual disability now convince them that their initial finding was in error.

In the words of Dr. Sachy, “I have vastly greater experience as a psychiatrist than I did in 2000, and I have access to better science pertaining to the issues in Mr. Hill’s case.” (Sachy p.6)

Dr. Harris adds, “We in the clinical community now better understand that persons with mild mental retardation are capable of such things as holding a job, working under close supervision, buying and driving a car, and so forth. It is precisely because significant deficits in cognition, judgment and impulse control can be masked by superficial functionality in cases of mild mental retardation that such persons may sometimes not be identified in court proceedings as being intellectually disabled. I believe this has happened in Mr. Hill’s case.” (Harris p.10). 



Mr. Hill faces execution on February 19, 2013 unless the U. S. Supreme Court intervenes. Attorneys for Mr. Hill currently have a motion for a stay of execution and a petition of certiorari pending with the U.S. Supreme Court.

In 2002, the same year the Supreme Court decided Atkins, Judge John Allen of the Superior Court of Butts County, GA found Mr. Hill to have an IQ of approximately 70 beyond a reasonable doubt and to fulfill the overall criteria (including impairments in adaptive skills) for mental retardation by a preponderance of the evidence.  Because Drs. Sachy, Harris and Carter had opined at the time that Mr. Hill did not quite meet the criteria for mental retardation, however, Judge Allen could not find that Mr. Hill could prove he had the syndrome beyond a reasonable doubt. 

On July 19, 2012 days before Mr. Hill's scheduled execution, Judge Wilson reaffirmed the Court’s previous findings, stating that: “The Court finds that this Court’s previous finding in Hill v. Head, Butts Co. Case No. 94-V-216, that Mr. Hill has an I.Q. of 70 beyond a reasonable doubt and meets the overall criteria for mental retardation by a preponderance of the evidence, is justified by the evidence in this case.”

Judge Wilson also found that despite the U.S. Supreme Court’s ruling prohibiting the execution of the “mentally retarded” (now known as people with intellectual disability), Mr. Hill did not meet Georgia's “beyond a reasonable doubt” -- the strictest state standard in the nation. 

Now, however, there is complete consensus on the part of all experts who have evaluated Mr. Hill that he is in fact mentally retarded.  His execution threatens to be a true miscarriage of justice and a violation of the Constitution. 


Georgia’s Supreme Court previously stayed Mr. Hill’s execution date in July 2012 due to issues related to the state’s lethal injection protocol; however, on the same day, the court denied Mr. Hill’s petition on the mental retardation issues. On February 4, 2013, Georgia’s Supreme Court resolved the lethal injection issues and lifted the stay on Mr. Hill’s execution. The Georgia Board of Pardons and Parole previously denied clemency and has declined to give Mr. Hill another audience. 



In her dissent to the majority finding by the Georgia Supreme Court that the reasonable doubt standard was constitutional, Justice Leah Sears wrote, "Despite the federal ban on executing the mentally retarded, Georgia's statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The State may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded." (Head v. Hill, 277 Ga. 255, 274 (2003).)



Today’s New York Times features an editorial (“A Final Plea for Mercy”) urging the court to protect Mr. Hill from Georgia’s standard, calling it “far too heavy a burden of proof.”

This week, The Huffington Post also published “The Supreme Court Must Stop the Execution of Warren Hill” by Eric Jacobsen, Executive Director of the Georgia Council on Developmental Disabilities. The Huffington Post previously published a piece by Margaret Nygren, the Executive Director and CEO of the American Association on Intellectual and Developmental Disabilities in support of reducing Mr. Hill’s sentence. 
 


Numerous others have called for the execution of Mr. Hill to be stopped. Christof Heyns, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, wrote an opinion piece in The Guardian and President Jimmy Carter and Rosalyn Carter have called for a commutation of Mr. Hill's death sentence to life without parole, as have many others. Several jurors who sat on Mr. Hill's original jury have also stated under oath that they believe that life without parole is the appropriate sentence in this case. It was not offered to them as an option at trial in 1991.

Notably, the family of the victim does not wish to see Mr. Hill executed, supporting commuting Mr. Hill's death sentence to life without the possibility of parole. In the words of a family spokesperson, “I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death.”


###



Earlier coverage of Warren Hill's case begins with the preceding post.

Warren Hill's Mental Retardation

AP reports, "Doctors say Ga. death row inmate mentally disabled," by Kate Brumback.  It's via the San Francisco Chronicle.

Lawyers for a Georgia man set to be executed next week released sworn statements Thursday from three doctors who originally testified for the state but who now say they've changed their opinions and believe he is mentally disabled.

All three doctors write in affidavits that they changed their diagnoses after reviewing evidence, testimony and documents in the case of Warren Lee Hill. Lawyers for Hill, who is set to be executed Tuesday, have long argued he shouldn't be executed because he is mentally disabled. State law and a previous U.S. Supreme Court decision prohibit states from executing people who are mentally disabled.

"Having reviewed my earlier evaluation results and the far more extensive materials from the record of this case, I believe that my judgment that Mr. Hill did not meet the criteria for mild mental retardation was in error," wrote Dr. Thomas Sachy wrote in an affidavit.

Hill's defense plans to submit the doctors' statements to the state Board of Pardons and Paroles when it requests a new clemency hearing, as well as to a state court that has previously declined to overturn his death sentence, said lawyer Brian Kammer.

The state has consistently argued that Hill's defense has failed to prove beyond a reasonable doubt that he is mentally disabled. Hill's lawyers have said that burden of proof is virtually impossible to meet. Georgia's strictest-in-the-nation standard for proving mental disability has repeatedly been upheld by state and federal courts.

"State experts change opinions in condemned killer’s case," is the Atlanta Journal-Constitution report by Bill Rankin.

Days before condemned killer Warren Lee Hill’s is scheduled to die, the same state experts who testified Hill was eligible for execution now say they were wrong, according to affidavits released Thursday.

Hill is to die by lethal injection on Tuesday at 7 p.m. His lawyers have already asked the U.S. Supreme Court to halt the execution. On Thursday, they said they will soon ask a state court judge to consider the doctors’ new statements and will use them when asking the State Board of Pardons and Paroles to give Hill a new clemency hearing.

During a key hearing 13 years ago, state attorneys called on two psychiatrists and a psychologist to refute Hill’s claims that he is mentally disabled and thus ineligible for execution. All three doctors now say they were mistaken when they testified Hill was not mentally disabled.

“Having reviewed my earlier evaluation results and the far more extensive materials from the record of this case, I believe that my judgment that Mr. Hill did not meet the criteria for mild mental retardation was in error,” said one of the experts, Thomas Sachy, a forensic psychiatrist.

In their affidavits, the doctors described their evaluations of Hill in late 2000 as rush jobs. They also said they did not have all the information they needed to make a proper diagnosis.

The scientific understanding of mental retardation has grown over the past dozen years, the doctors said, giving them better insight into evaluating a person such as Hill, whom they initially believed was faking.

And:

The case has attracted national attention. Two state court judges have found that Hill was mentally retarded, but they said Hill only proved that he was more likely than not mentally retarded.

That’s not strong enough proof in Georgia, which is the only state in the country that requires capital defendants to prove mental retardation beyond a reasonable doubt. Such a finding for Hill means he would be sentenced to life in prison.

At the ACLU Blog of Rights, Brian Stull posts, "How Do I Explain to my Six Year-Old Son What Kind of a Society Plans to Execute an Intellectually Disabled Man?"

So what gives? If the court, the victims' family, and Hill's childhood teachers all say that Hill is intellectually disabled, then how can he be executed? The answer is a technicality, a glitch, a quirk in Georgia law. Georgia stands alone among death-penalty states in requiring proof beyond a reasonable doubt of intellectual disability before barring execution. The Georgia judge found beyond a reasonable doubt that Hill had an IQ of 70 or below, but only by a "preponderance of the evidence" that he suffers adaptive limitations and that he began suffering his disability before the age of 18. A "preponderance of the evidence" is lawyer-speak for more likely than not. In other words, Georgia says to Hill, we're pretty sure you're intellectually disabled, but we find you don't meet our very high standard of proof.

Society shows its best self when it takes care of its disabled, makes available needed services, allows for equal education and other opportunities. And of course we don't require the disabled to prove their disability beyond a reasonable doubt -- the highest standard of proof known to law (designed, as we have previously explained, for a completely different purpose). We provide these services and opportunities without anything like this kind of scrutiny because it's the right thing to do. It's also the right thing to do to stop this execution from proceeding on a technicality. Hill's pending petition to the U.S. Supreme Court asks the Court to stop the execution, and in turn to save us from our worst selves. Let's hope they do.

Earlier coverage of Warren Hill's case begins at the link.  In the next post, a news release issued by Hill's advocates.

Final Plea for Mercy

That's the title of an editorial published in today's New York Times on the Georgia case of Warren Hill.

Warren Lee Hill Jr., with an I.Q. of 70, is scheduled to be executed on Tuesday in Georgia. The Supreme Court should stay the execution, as his lawyers have requested, and recognize that Georgia makes it too hard for an offender to prove retardation.

In 2002, the justices banned capital punishment for the mentally retarded, but a question remains over how states handle such cases. Georgia is the only state in the country that requires a defendant to prove retardation beyond a reasonable doubt.

That is far too heavy a burden of proof because it is too easy to cast doubt on evidence concerning mental capacity.

Mr. Hill has proved his retardation in state trial court twice by the more sensible “preponderance of the evidence” standard. But the Georgia Supreme Court said Mr. Hill needed to meet the higher “beyond a reasonable doubt” standard set by state statute.

When the Supreme Court directed the states to bar executions for the retarded, it left them “the task of developing appropriate ways” to make a determination about retardation. But the justices could not have intended states to impose, as Georgia has, a standard of proof that is nearly impossible to meet.

Georgia Public Broadcasting posts the AP report, "Hill Requests Execution Stay."

A lawyer for a Georgia inmate set to be executed next week has filed a U.S. Supreme Court motion requesting a stay of execution.

Attorneys for Warren Lee Hill, filed the motion Wednesday. Hill is set to be executed Feb. 19.

And:

Hill's attorneys have argued their client should be spared from the death chamber because he is mentally disabled, a claim the Georgia Supreme Court has rejected. Georgia law requires defendants to prove their mental disability beyond a reasonable doubt — which Hill's attorneys say is impossible to do.

"Execution Scheduled For Next Week To Put Georgia Back On Trial," is the Peach Pundit blog post and column in the Dublin Courier Herald.

But beneath the headlines that we are sure to hear (and that frankly are more valid than the specious claims raised in the McPhail case), there is another matter that makes this execution problematic.  The relatives of the victim do not want this execution to proceed.

This is not a late recantation as was alleged the case in the McPhail case.  Rather, the family of Mr. Handspike says they were not even given notice of the trial – much less allowed to testify in the sentencing phase.

It is commonplace for the family of victims to give impact statements during sentencing.  Much of this time the testimony is given to ensure that a harsh punishment is handed down, though occasionally there is a request for leniency.  The family of Joseph Handspike wasn’t given the courtesy of attending, much less to have their wishes considered.

Earlier coverage of Warren Hill's case begins with Andrew Cohen's commentary.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Andrew Cohen on the Case of Warren Hill

"Executing the Mentally Retarded: The Night the Lights Went Out in Georgia," is Andrew Cohen's latest post at the Alantic.

The story of Warren Lee Hill, which is poised to reach its apex next week, is really the story of how vast the gulf is sometimes between the lofty pronouncements of the United States Supreme Court and the manner in which lesser functionaries of law and justice implement the letter and the spirit of those pronouncements. For in the case of Warren Lee Hill, we see nothing less than the state-sanctioned defiance of a recent Supreme Court mandate: Thou shalt not execute the mentally retarded.

Hill is a capital inmate in Georgia, long ago convicted of murder, who is scheduled to be executed next Tuesday. This is happening, at least for now, because Georgia officials have come up with a way to satisfy themselves that Hill is not mentally retarded. They have accomplished this psychological miracle by enforcing a restrictive state law which makes it virtually impossible for any capital defendant to ever prove his or her mental retardation. And they say they are entitled to apply this law because the Supreme Court said so.

Georgia is pressing ahead with the execution even though Hill's lawyers have proven beyond a reasonable doubt that, with an IQ of 70, he has "significantly subaverage intellectual functioning."

The Guardian posts, "Georgia will violate both justice and the constitution if it executes Warren Hill," by Christof Heyns.

The US supreme court says it is a violation of the constitution to execute an offender with intellectual disabilities, but the state of Georgia is poised to do just that.

Just over a year ago, the world learned that Georgia was about to execute Troy Davis, someone about whose guilt there were serious questions. Many expressed their misgivings, but he was, nevertheless, executed. It has now become clear that Georgia has finally cleared the last legal hurdles and is intent on executing Warren Hill, whose IQ is within the range of what is considered to constitute intellectual disability, or "mental retardation" (in US parlance). A state court has twice found that Hill meets the criteria for mental retardation by a preponderance of the evidence.

"Warren Hill Faces Execution In Georgia Again," is Brian Evans' post at AIUSA.

Last summer, Richard Handspike, speaking for the victim’s family, wrote in a letter to the Georgia Board of Pardons and Paroles: “I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death.”

The Georgia Board, however, rejected calls for clemency.

So the Supreme Court needs to step in. Prohibiting execution of the “mentally retarded” should mean just that. And with Warren Hill’s case the Supreme Court can make that clear.

Earlier coverage of Warren Hill's case begins at the link.

Execution Date Set for Warren Hill in Georgia

Last week the Atlanta Journal-Constitution reported, "Execution warrants signed for two killers."  It was written by Bill Rankin.

Executions were set Tuesday for two condemned Georgia inmates — Warren Hill, who killed a fellow prisoner, and Andrew Cook, who fatally shot two Mercer University students.

Hill’s execution is scheduled to be carried out Feb. 19 at 7 p.m. and Cook’s is set for Feb. 21 at 7 p.m., the Department of Corrections said. Both executions will be conducted at the Georgia Diagnostic and Classification Prison in Jackson.

The last Georgia inmate to be executed was Troy Anthony Davis, who was put to death Sept. 21, 2011, for the killing of a Savannah police officer.

Hill’s execution had been scheduled last July. But with two hours to spare, the Georgia Supreme Court issued a stay to determine whether Corrections should have followed the state Administrative Procedure Act, which allows for public comment, when it replaced its three-drug execution cocktail with one drug, pentobarbital.

On Monday, the court found that Corrections followed proper procedure when making the switch. In that ruling, the justices lifted its stay of Hill’s execution.

Eric Jacobson, the executive director of the Georgia Council on Developmental Disabilities, writes, "The Supreme Court Must Stop the Execution of Warren Hill," for Huffington Post.

On February 19, 2013, Georgia plans to execute Warren Hill, a man with an intellectual disability. Mr. Hill has exhausted his appeals. The Georgia State Board of Pardons and Paroles denied clemency and has declined to give Mr. Hill another audience.

The United States Supreme Court should intervene in this case to ensure that the protection they have granted for the "mentally retarded" against the death penalty is realized. If the court does not act, a man with an undisputed intellectual disability will be unconstitutionally put to death next week.

As the Executive Director of Georgia's Council on Developmental Disabilities, I have strongly advocated for state and federal legislation that protects our nation's most vulnerable citizens. Our organization, and those like us across the country have supported many laws, including those that protect people with intellectual disabilities from execution. This supports the position of the United States Supreme Court in its landmark 2002 Atkins v Virginia ruling, noting that people with intellectual disabilities are less culpable for their actions and are at greater risk for wrongful execution.

And:

The protections that exist under the law for people with intellectual disability are vitally important to our democracy. People with intellectual disability deserve to live as full citizens of this country and state, protected by laws designed to recognize our diversity and uphold our basic rights, despite our differences. We, in Georgia will continue to fight to bring our state into alignment with other states by working with policy makers to change the "beyond a reasonable doubt" standard. In the meantime, the United States Supreme Court must stop the execution of Warren Hill.

"Georgia’s Plan to Execute Retarded Man Raises Moral Questions," is by Imani Jackson at Politics 365.

The state of Georgia has rescheduled the execution of a mentally handicapped inmate for February 19. Warren Lee Hill Jr. was scheduled for execution last summer; however, the Georgia Department of Corrections changed the lethal injection process and delayed his execution.

The same day that the lethal injection protocol was examined, a petition for considering Hill’s mental retardation,  was denied, despite his IQ of 70.

Hill’s attorney, Brian Kammer, told Politic365 that he wants the courts, the department of corrections and the clemency board “to err on the side of humaneness and mercy” in cases similar to Hill’s.

Think Progress posts, "Georgia Will Execute An Intellectually Disabled Man Next Week Unless The Supreme Court Intervenes," by Nicole Flatow.

While a series of procedural rulings have delayed execution for Warren Lee Hill, he faces imminent capital punishment by the state of Georgia a week from tomorrow, in spite of a U.S. Supreme Court decision that says executing the severely mentally disabled is unconstitutional. Hill, who was deemed “mentally retarded” at trial (an unfortunate legal term), has exhausted his appeals, and only U.S. Supreme Court action can stop his execution this time.

Among those who have advocated for Hill’s clemency are several jurors from Hill’s trial, disability groups, and President Jimmy Carter. Even the victim’s family has submitted an affidavit stating that they prefer clemency.

Earlier coverage of Warren Hill's case begins at the link.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

New York Federal Death Penalty Case May Proceed

"Judge Finds Wilson Not Mentally Retarded; Clears Way for Death Penalty Trial," is the New York Law Journal report by Mark Hamblett.

Ronnell Wilson is not mentally retarded and can once again appear before a jury that will decide whether he should be executed for the murder of two undercover police officers on Staten Island in 2003, a federal judge ruled this morning.

Eastern District Judge Nicholas Garaufis rejected claims by lawyers for Wilson that he was mildly retarded and should be spared capital punishment pursuant to Atkins v. Virginia, 536 U.S. 304 (2002).

Wilson was convicted in 2006 by a jury in Brooklyn federal court of the 2003 murder of NYPD Detectives James Nemorin and Rodney Andrews. The jury went on to vote that he be put to death and Garaufis imposed the penalty in 2007.

But the U.S. Court of Appeals for the Second Circuit vacated the capital punishment verdict on constitutional grounds and remanded to Garaufis for a retrial on the penalty phase.

On remand, Wilson requested a pretrial hearing on whether he was mentally retarded and thus ineligible for a death sentence under the Eighth Amendment's prohibition against cruel and unusual punishment and the Federal Death Penalty Act.

Garaufis held a nine-day hearing in December 2012 under Atkins, where the Supreme Court held that the execution of mentally retarded individuals was cruel and unusual punishment. At the hearing, believed to be the first of its kind in federal court in New York, dueling experts gave contrary opinions on Wilson's intellectual skills and abilities (NYLJ, Dec. 6, 2012).

This morning, Garaufis said, "Wilson has not satisfied the burden of proving that he more likely than not suffers from significantly subaverage intellectual functioning."

Yesterday, the case garnered media attention for another reason.  The New York Times reported, "Impregnated by Prisoner, Guard Now Faces Charges," by Mosi Secret.

He was one of the most notorious criminals in New York’s recent history, whose execution-style murder of two undercover police officers led a jury to issue the first federal death sentence in the city in more than a half century.

She was a lonely correction officer, assigned to guard the cell block at the Metropolitan Detention Center in Brooklyn, where he was being held.

Inside the federal jail, Ronell Wilson, the convicted killer, and Nancy Gonzalez, his nighttime guard, would talk for hours, according to other inmates. They would disappear together for minutes at a time, behind closed doors. Several times, they were seen kissing, confirming suspicions of an illicit romance.

Ms. Gonzalez later admitted that the two had sex repeatedly, with the goal of having a child together. She was aware, she said, of the many possible complications, from the prospect of facing jail herself to the difficulty of telling her child the truth about his father. She explained her motivations to another inmate: “Why not give him a child, as far as giving him some kind of hope?”

On Tuesday, Ms. Gonzalez, 29, displaying the full contours of a pregnancy now in its eighth month, was arraigned in federal court on charges of sexual abuse of a person in custody, because an inmate cannot legally consent to sex. The charge carries a maximum sentence of 15 years in prison. She stood before the judge in a black overcoat and sweat pants, softly answering procedural questions while dabbing her eyes with a tissue.

The press surged around Ms. Gonzalez the instant she stepped out of the courthouse, and she put her head on the shoulder of her lawyer, Anthony L. Ricco. “She’s had a very tragic life and as this case proceeds, you’ll learn more about it and how these affected her judgment,” Mr. Ricco said. He added, “People find love in the strangest places.”

"Authorities: Guard Had Sex With Inmate Facing Death Penalty," by Sean Gardiner and Carrie Melago for the Wall Street Journal.

A female corrections officer was charged Tuesday with having sex with an inmate facing the death penalty for the 2003 murders of two New York Police Department officers, authorities said.

According to a federal complaint, Nancy Gonzalez is eight months pregnant following a relationship with Ronell Wilson, who was sentenced to death in the homicides of undercover detectives Rodney Andrews and James Nemorin. She faces charges of unlawful sexual abuse and is awaiting arraignment in Brooklyn federal court Tuesday.

Gonzalez was captured on video repeatedly meeting with Wilson in a vacant room inside the Metropolitan Detention Center, and she disclosed her pregnancy to jail officials in June 2012.

Earlier coverage of Ronell Broom's case begins at the link.  Related posts are in the federal death penalty category index.

Atkins Determination in Pennsylvania

The Pennsylvania Supreme Court ruling in Pennsylvania v. Williams is available in Adobe .pdf format.

"Mentally disabled Crafton Heights man won’t face death penalty," is the Pittsburgh Tribune-Review coverage by Adam Brandolph.

The Pennsylvania Supreme Court on Tuesday upheld an Allegheny County judge‘s decision to remove a Crafton Heights man from death row because he is mentally disabled.

A jury in 2002 sentenced Connie Williams, 61, to die by lethal injection after convicting him of first-degree murder for killing his wife, Frances Williams, 53, in August 1999. He stabbed her to death, then cut off her head, hands and feet.

Common Pleas Judge Lawrence J. O‘Toole in April 2010 removed Williams from death row because his attorneys argued the sentence amounted to cruel and unusual punishment. Prosecutors appealed.

Justices on the Supreme Court saw no errors and upheld O‘Toole‘s decision, citing prominent doctors who testified that Williams‘ IQ was between 70 and 75.

“Connie‘s lack of intellect was evident,” public defender Lisa Middleman, who represented Williams during the penalty phase of his 2002 trial, told the Tribune-Review in 2010.

Related posts are in the mental retardation index.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Florida Roundup

"Death Penalty Question Revisited," is the December 23 report from AP filed by Bill Kaczor.  It's via the Lakeland Ledger.

The Florida Supreme Court will be asked to take another look at how judges should determine whether a death row inmate is mentally disabled.

The issue divided the high court last week in a 4-2 opinion upholding Freddie Lee Hall's death sentence for murdering Karol Hurst, a 21-year-old pregnant woman who was abducted while leaving a Leesburg grocery store in 1978. A co-defendant is serving a life sentence.

Defense lawyer Eric Pinkard, who works for a state office that represents death row inmates, said Friday that he will ask for a rehearing and, if that fails, may take the case to the U.S. Supreme Court.

The federal high court has prohibited the execution of mentally disabled inmates as unconstitutional cruel and unusual punishment, but it has allowed states to determine what constitutes mental disability.

The majority of Florida justices ruled Thursday in Hall's case that they are bound by precedent set in earlier decisions prohibiting anyone with an IQ of 70 or higher from being declared mentally disabled, regardless of other evidence to the contrary.

The Palm Beach Post reported, "Lawyers question necessity, cost of local state attorney’s avid pursuit of the death penalty in murder cases," on December 26.  It's by Jane Musgrave.

With his arm wrapped tightly around his wife, Naomi, Gerard Gonsalves seemed to be protecting her from the looming possibility that the loss of one son could cost them the other.

At a recent court hearing, the West Palm Beach couple looked on as psychologists and psychiatrists told a judge what they already knew: Their 24-year-old son, Brandin, suffers from a panoply of mental ills.

Since he was diagnosed at age 13, they tried to get him help to deal with his demons. The search ended in July when Brandin stabbed his 25-year-old brother 69 times in a fatal attack he has said was ordered by God.

Still reeling from the loss, the couple is now confronted with another: The state wants to kill their youngest son for killing their firstborn.

The case underscores the problems with a system State Attorney Peter Antonacci instituted when he was appointed in March, some defense attorneys say. Now, instead of asking a committee of top prosecutors to review every case to determine which accused killer should die for his or her crime, the office automatically seeks the death penalty in all first-degree murder cases.

“It’s crazy,” said Public Defender Carey Haughwout, whose office defends the indigent and represents about half of those charged with murder. “There’s no review done before they file a notice to seek the death penalty. My concern is that it’s handled as a matter of course.”

Under the policy, the number of death penalty cases has doubled from 12 in 2009 to 24 this year. That means costs — both financial and human — have increased as well.

Haughwout and other defense attorneys say they hope the policy changes when State Attorney-elect Dave Aronberg takes office in January. Aronberg declined to discuss how he would decide which accused murderer deserves the death penalty. But on the campaign trail he promised to reinstitute the committee system that was used by his mentor, former longtime State Attorney Barry Krischer, who is helping him prepare to take office.

Three news articles focus on the 2012 DPIC report and Florida death sentences.  The South Florida Sun Sentinel published, "Florida leads nation in sending killers to Death Row," by Rafael Olmeda.  It's also available via Huffington Post.

Florida may be fourth in the nation when it comes to population, but we're still No. 1 when it comes to sending convicted killers to death row, according to a report from a national nonprofit group that studies the death penalty in America.

The Sunshine State sentenced 21 inmates to death in 2012 — more than California, more than Pennsylvania, and even more than Texas, which continues to lead in the number of inmates actually executed, according to the Death Penalty Information Center.

It's the second straight year in which Florida has held the top spot among the states that have a death penalty, but it still represents a big spike over last year, when we sent 13 people to death row. California came in second both years, having sent 10 inmates to death row in 2011 and 14 this year.

"Florida led the nation in death sentences in 2012, report says," by Jeff Weiner for the Orlando Sentinel.

A report by a national nonprofit group that studies the death penalty found that Florida remains among the most active states in using it and put more defendants on death row in 2012 than any other state.

The Death Penalty Information Center's report reveals that only nine states executed a prisoner this year, with Florida putting three to death. Texas, with 15, executed the most defendants, the report states.

However, the Sunshine State far exceeded other states in new death sentences: 21 defendants were sentenced to die in Florida through mid-December, the research says.

Also, "Report: Florida leads nation in new death penalty cases," is by Elaine Silvestrini for the Tampa Tribune.

As capital punishment declines in use and support nationwide, Florida leads the country in the number of death sentences handed down this year, according to a report by a group that advocates against the death penalty.

Florida judges sentenced 21 killers to death in 2012, followed by California with death sentences for 14 murderers, Texas with 9 and Pennsylvania with seven, according to the Death Penalty Information Center. The four states accounted for 65 percent of the death sentences handed out in the United States.

Nationally, the number of death sentences issued was the second lowest since capital punishment was reinstated nationwide in 1976.

In Florida, Duval County sent the most inmates to death row this year, at four, according to information from the state Department of Corrections. Hillsborough and Pinellas counties each sent one person to death row this year.

Earlier coverage from Florida includes the year's final execution and questions of an inmate's competency to be executed.  Earlier coverage of the 2012 DPIC report is also available.

Alabama Repeal Legislation Introduced

"Senator files bill to ban capital punishment in Alabama," is Tim Lockette's report in the Anniston Star.

An Alabama state senator has filed a raft of bills — five in all — challenging the state’s use of the death penalty.

For Sen. Hank Sanders, D-Selma, proposals to reform or halt capital punishment have become a yearly ritual, as regular as the decoration of the Capitol Christmas tree. But this year, Sanders hopes to see an actual debate on the question of whether the state should execute people.

“I’ll be asking for a public hearing, early in the session,” Sanders said.

In December, Sanders filed a bill that would ban capital punishment. He also filed a separate bill that would place a moratorium on executions, pending a review by the state.

Three other bills would attempt to bring Alabama in line with most other states on rules regarding mentally handicapped defendants, juvenile offenders and judges’ sentencing powers in capital cases.

None of the bills raised eyebrows in Montgomery. Sanders has proposed each of the measures at least once before; his bills have rarely made it out of committee. But Sanders said the issue is important enough to raise again.

And:

Alabama had 195 inmates on death row as of Wednesday, according to the state Department of Corrections. That’s the fifth-largest death row in the nation, according to the nonprofit Death Penalty Information Center. As of last April, California had 724 people awaiting execution, Florida 407, Texas 308 and Pennsylvania 204.

Earlier coverage from Alabama includes juvenile sentencing and judicial overrides of jury sentencing.

Atkins Victory in Mississippi

The Jackson Clarion-Ledger posts the AP report, "Death penalty thrown out for mentally disabled man."  It's by Holbrook Mohr.

The Mississippi Supreme Court has thrown out the death sentence of Howard Dean Goodin on grounds that he’s mentally disabled.

Goodin, now 58, was sentenced to death in the November 1998 robbery and fatal shooting of Union store owner Willis Rigdon.

The court ruled Thursday that a “preponderance of the evidence” shows Goodin is mentally disabled. The justices returned the case to Newton County Circuit Court for resentencing.

The only sentencing options for a capital murder conviction are death or life without parole. Inmates found to be mentally disabled are not eligible for the death penalty.

“We find the trial court’s conclusion that Goodin is not mentally retarded to be clearly erroneous,” Presiding Justice George C. Carlson Jr. wrote in the court’s opinion.

The Mississippi Supreme Court ruling in Goodin v. Mississippi is available in Adobe .pdf format.

Related posts are in the mental retardation index.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Ronell Wilson Hearing Concludes

Today's New York Post reports, "Defense rests case in Ronell Wilson death penalty hearings."  It's by Mitchel Maddux.

Defense attorneys rested their case yesterday, saying that a half-dozen of their experts had proven that their client, convicted of murdering two NYPD detectives, is mentally handicapped and should be spared execution.

Ronell Wilson, 30, has been the focus of six days of special hearings before a Brooklyn federal judge, where defense experts testified that he was intellectually impaired following a childhood of deprivation and neglect - with a drug-addicted mother who was largely absent from their broken home.

Defense lawyer Michael Burt said the defense team's "highly competent" specialists - including university academics, psychiatrists, and psychologists - had shown that Wilson's intelligence ranks in the bottom 10 percent of the spectrum.

"We think that the burden has been proven," Burt told Judge Nicholas Garaufis.

And:

The special hearings are focused on whether Wilson should face the death penalty or spend life behind bars.

Wilson was already sentenced to death in 2007 after a federal jury found him guilty of gunning down the two cops. He became the city’s first federal defendant to receive a death sentence since 1954.

But an appeals court reversed Wilson’s sentence in 2010, saying prosecutors violated his constitutional rights by telling the jury his decision to go to trial demonstrated a lack of remorse and responsibility.

Once the special hearings come to a close, Garaufis will eventually rule on whether Wilson is mentally fit.

If the court finds that Wilson is not mentally handicapped, then he will schedule a new penalty-phase trial for the Spring.

Earlier coverage of Ronell Wilson's case begins at the link.  Related posts are in the federal death penalty category index.

Post-Conviction Atkins Relief in Texas

"Katrina evacuee on Texas death row gets life term," is the AP report, via the CT Post.

A Louisiana man's death sentence in Texas has been reduced to life in prison without parole in the killing of a woman who helped him when he relocated after Hurricane Katrina.

Attorneys for 50-year-old Roosevelt Smith Jr. contended he's mentally impaired and ineligible for execution under Supreme Court guidelines.

A state-appointed psychologist determined Smith was impaired. The Texas Court of Criminal Appeals on Wednesday agreed.

The Texas Court of Criminal Appeals ruling in Ex Parte Smith is available in Adobe .pdf format.

The case involved expert witness testimony by disgraced Texas psychologist George Denkowski; past coverage of Denkowski begins at the link.  Earlier coverage of Texas' application of Atkins is also available.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

How Texas Applies Atkins

Atkins v. Virginia is the 2002 case in which the Supreme Court ruled that the execution of offenders with mental retardation was unconstitutional.  The ruling left it to the individual states that did not already ban the practice to bring their state laws into conformance with the ruling.  The Texas Legislature has not addressed the question, even though 10 years and five legislative sessions have passed.

That left the Texas Court of Criminal Appeals to establish standards.  They did so in 2004 in the ruling, Ex Parte Briseno, and the standards have faced widespread criticism ever since.

"Supreme Court asked again to review Texas' mental retardation test for convicted killers," is the editorial published in the Sunday Fort Worth Star-Telegram.

The killing for which Elroy Chester was sentenced to death was as awful as they come, a clear violation of both law and morality.

What the U.S. Supreme Court is being asked to review in his case is whether allowing the state of Texas to execute him would violate the U.S. Constitution's prohibition on cruel and unusual punishment.

On Oct. 26, the justices could decide whether to hear arguments on the petition from Chester, who has been on Death Row since 1998. His lawyers argue that he has an IQ less than 70, can't function independently, has been considered mentally retarded by the Texas prison system and received that diagnosis upon his arrest for capital murder.

On a larger scale, they argue that Texas assesses criminal defendants' mental retardation using factors that were "invented" by the Texas Court of Criminal Appeals, "are not rooted in the clinical standards, have no basis in the scientific literature, and do not reliably distinguish between those who are and are not mentally retarded."

And:

There's no certainty that the Supreme Court wants to review the way Texas determines mental retardation for death penalty purposes. In August, the justices turned down a petition from Marvin Lee Wilson, whose lawyers argued that he was mentally retarded. He was executed Aug. 7.

Apparently, the Court of Criminal Appeals developed its criteria on the grounds that clinical factors were too subjective. However, the court's guidelines might be just as problematic.

Whether or not the Supreme Court accepts Chester's case, it's time for the Legislature to deal with yet another problematic area of Texas' death penalty.

Earlier coverage of the Texas standards to assess mental retardation begins at the link.  Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Bad Science Behind Unconstitutional US Executions

That's the title of an editorial published in the current issue of New Scientist.

FEW topics invoke such passionate feelings in the US as the death penalty, especially when applied to convicts with the intellectual capacity of children.

In 2002, the US Supreme Court ruled that executing people with an intellectual disability was unconstitutional, citing a "national consensus" against it. Unfortunately the ruling failed to end the practice, in that it left it up to individual states and courts to decide how to assess intellectual disability.

Those assessments are often flawed. Many courts fail to accept scientific facts on the limitations of IQ testing, such as inevitable measurement errors. Inmates are also on death row because their IQ happened to be assessed using old tests (see "Death by IQ: US inmates condemned by flawed tests").

Convicts pleading intellectual disability must also prove that they have significant deficits in basic life skills, such as dealing with money. Assessment of this is, if anything, a bigger problem.

Texas, which executes more people than any other state, is home to some particularly egregious practices. For example, though validated tests of life skills exist, Texan courts favour standards that have no scientific basis. These include vague considerations such as the ability to tell lies and whether people who know the defendant think he or she is "mentally retarded". This is absurd, turning a complex clinical judgement over to witnesses with no specialist training.

Some Texan courts also accepted expert witness testimony from psychologist George Denkowski, who argued that life-skills scores for people from impoverished backgrounds should be adjusted upwards because they were brought up in an environment in which skills such as hygiene were not valued.

Denkowksi was stopped from making assessments in April 2011, but by then 14 of the men he assessed were on death row and two had already been executed.

Earlier coverage of the case and execution of Marvin Wilson begins at the link; past coverage of Texas psychologist George Denkowski is also available.

Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

David Dow on the Case of Marvin Wilson

"Supreme Court Outlawed Executing Mentally Retarded, But Texas Does It Anyway," is the title of David R. Dow's commentary at Daily Beast.  He's the Cullen Professor at the University of Houston Law Center and the author of The Autobiography of an Execution.  Here's the beginning:

Last week Texas killed Marvin Wilson—the 484th person the Lone Star State has executed since the death penalty was reinstated in 1977. Wilson’s execution became national news because he was mentally retarded: his IQ had been measured at 61. He was also my client.

When I first met Wilson nearly seven years ago, he was soft spoken, almost shy. His reading and writing skills were around the level of my son’s, who was 5 at the time. He told me getting convicted of murder was good because it gave him an opportunity to learn a lot of things. I asked him what he meant. He said, “You know, how to live on your own and things.”

In 2002 the Supreme Court ruled in Atkins v. Virginia that it was unconstitutional to execute the mentally retarded. You might think that would have ended the execution of the mentally retarded, but you would be wrong.

Why? Because Texas executes the mentally retarded anyway, and the federal courts don't seem to care. In a 2004 decision the Texas Court of Criminal Appeals issued a decision called Ex parte Briseno, which basically said it is OK to execute people who are mentally retarded, so long as their retardation is “mild.” That is not what the Supreme Court said in Atkins. In fact, it is pretty much the opposite of what the Supreme Court said. Without putting too fine a point on it, doing the opposite of what the Supreme Court says is what is known as being lawless. Which raises the question: If you do something over and over again, and court after court appears not to care, is it still lawless?

Earlier coverage of David Dow includes a recent TED Talk, his essay on this year's 40th anniversary of Furman v. Georgia, and a discussion with Terry Gross on NPR's Fresh Air, regarding his critically acclaimed, Autobiography of an Execution.

Earlier coverage of Marvin Wilson's case and his execution begins at the link.  Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

More From the Steinbeck Family

"Steinbeck Family Outraged That Texas Judge Cited ‘Of Mice and Men’ in Execution Ruling," is Robert Mackey's post at the New York Times Lede blog.

After Thomas Steinbeck, the writer’s son, read a Guardian article on how his father’s novel had been used in a Texas court to argue for the execution of the mentally retarded, he joined the effort to halt the killing of Mr. Wilson, The Beaumont Enterprise reported. In a statement released on Tuesday, just before Mr. Wilson was put to death for a fatal shooting in 1992, Mr. Steinbeck wrote:

On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e., Lennie Small from “Of Mice and Men,” as a benchmark to identify whether defendants with intellectual disability should live or die.

My father was a highly gifted writer who won the Nobel Prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way. And the last thing you ever wanted to do, was to make John Steinbeck angry.

In 1937, the novelist himself told The New York Times that the model for his character, a killer who did not comprehend his own actions, was shown leniency by the American legal system of the time. “Lennie was a real person,” Mr. Steinbeck said. “He’s in an insane asylum in California right now. I worked alongside him for many weeks. He didn’t kill a girl. He killed a ranch foreman. Got sore because the boss had fired his pal and stuck a pitchfork right through his stomach. I hate to tell you how many times I saw him do it. We couldn’t stop him until it was too late.”

"Steinbecks: Leave Lennie alone," by Rania Khalek at Salon.

Despite having been diagnosed with mental retardation by a court-appointed neuropsychologist, Texas courts determined, based on unfounded and highly subjective standards, that Wilson was not mentally retarded and therefore was eligible for execution. Texas, unlike any other death penalty state, measures mental retardation using nonclinical standards invented by the Texas Court of Criminal Appeals. Known as the “Briseño factors,” these standards have absolutely no basis in science or clinical application. Instead they were inspired by Lennie Small, the fictional migrant farmworker from the famous novel “Of Mice and Men,” written by the late Nobel Prize-winning American author John Steinbeck.

Wilson’s attorney, Lee Kovarsky, told Salon that eight years later, not a single clinician or scientific body uses or even recognizes the “Briseño factors” as valid. “There is no citation to any science or opinion as to where those factors come from,” he adds. In fact, the only reference the TCCA made was to Steinbeck’s Lennie Small.

"John Steinbeck's writing shouldn't be used in death row cases, says son," by Nadia Khomami at the Telegraph.

John Steinbeck’s son has criticised the State of Texas over its use of his father’s fiction in death row cases.

Texas has been using the mental disability of Lennie Small, the Nobel prize-winning author's fictional character in Of Mice and Men, to define learning difficulties and thus to justify its execution of Marvin Wilson, who was put on death row for the 1992 murder of a police informant.

Earlier coverage of the execution of Marvin Wilson begins with the preceding post.

International Condemnation of Marvin Wilson Execution

Today's The Irish Times publishes the editorial, "A death in Texas."

A DECADE AGO the US supreme court ruled that the mentally impaired “should be categorically excluded from execution” because of “their disabilities in areas of reasoning, judgment and control of their impulses.” On Tuesday the state of Texas decided for the tenth time to exercise the discretion allowed by the Atkins v Virginia ruling to examine claims of mental impairment to determine for itself a death row inmate’s degree of capacity, and it executed Marvin Wilson. The supreme court declined to intervene.

And:

He was executed under a new state procedure using a single dose of the sedative pentobarbital following shortages arising from the refusal of a European supplier under pressure from death penalty opponents to supply another drug, sodium thiopental, that had previously been used as part of a three-drug cocktail. Danish suppliers of pentobarbital now say they will not supply the drug for execution use, a refusal which the EU, strongly opposed to the death penalty, should enshrine in community law as an export ban.

Unfortunately, Texas has enough in stock for another 22 executions. Four other states – Arizona, Idaho, Ohio and Washington – have also used a single drug to carry out executions, but death penalty opponents claim single-drug executions may be less humane. They point to an April execution in Arizona, where an inmate shook for several seconds after receiving a lethal dose of pentobarbital. Europe should act quickly to cut off the executioners’ supply of the drug.

The government of France has issued the statement, "United States - Execution of Marvin Wilson."

France condemns yesterday’s execution, in Texas, of Marvin Wilson, who was mentally impaired.

His execution runs counter to internationally established guarantees protecting the rights of people who are eligible for the death penalty, including the principle of not executing individuals who are mentally impaired.

France reaffirms its opposition to the death penalty throughout the world and in all circumstances. Abolishing the death penalty is crucial to the protection of human dignity.

France continues to strive for the universal abolition of capital punishment by seeking a worldwide moratorium on executions, the first step toward accomplishing this objective.

"The Parliament posts, "EU's Ashton voices concern over Texan execution," by Martin Banks.

EU foreign affairs chief Catherine Ashton has voiced concern at the execution in Texas of a disabled man.

A spokesman for Ashton, EU high representative for foreign affairs and security policy and a commission vice president, said she "deeply regrets the execution" of Marvin Wilson.

And:

In a statement, Ashton's spokesman said, "The high representative recognises the serious nature of the crime involved and expresses her sincere sympathy to the surviving family and friends of the victim.

"However, she does not believe that their loss has been mitigated by Wilson's death.

"The EU opposes the use of capital punishment in all cases and under all circumstances and calls for a global moratorium as a first step towards its universal abolition. With capital punishment any miscarriage of justice, from which no legal system is immune, represents an irreversible loss of human life.''

"Texas Execution Prompts EU To Call For Moratorium On Death Penalty," is from RTT News.

European Union Foreign Policy chief Catherine Ashton has expressed deep regret at the execution of a US citizen who has significant intellectual disabilities, and called for a global moratorium on capital punishment.

The US state of Texas on Tuesday executed Marvin Lee Wilson, a man who has significant intellectual disabilities, ignoring calls by human rights organizations.

And:

A statement issued by the spokesperson of Catherine Ashton on Wednesday said "The High Representative recognizes the serious nature of the crime involved and expresses her sincere sympathy to the surviving family and friends of the victim. However, she does not believe that their loss has been mitigated by Wilson's death."

Ashton said "The EU opposes the use of capital punishment in all cases and under all circumstances," and called for "a global moratorium as a first step towards its universal abolition.

"With capital punishment any miscarriage of justice, from which no legal system is immune, represents an irreversible loss of human life,'' she added.

"The law of executions," is at Al Jazeera English.  There is video at the link.

To discuss this Inside Story Americas, with presenter Shihab Rattansi, speaks to: Jim Ellis, a lawyer who argued the 2002 case in which the Supreme Court ruled that executing intellectually disabled individuals is cruel and unusual punishment; Laura Moye, the Death Penalty Abolition Campaign director at Amnesty International USA; and Margaret Nygren, the executive director of the American Association on Intellectual and Developmental Disabilities.

Earlier coverage of the execution of Marvin Wilson begins with the preceding post.

Texas's Death Penalty Machine Executing the Mentally Disabled?

That's the title of Renee Feltz' article in the latest edition of the Texas Observer.  She has written extensively about the Texas criminal justice system's dubious assessments of persons with Intellectual Disability (ID), also known as mental retardation.

In the final hours before his execution in Huntsville Tuesday night, 54-year-old Marvin Wilson told his attorney that, comforted by his god and family, he had reconciled himself to what was about to happen. Now we are left to wonder how Texas was able to kill a man with an I.Q. of 61 who reportedly sucked his thumb into adulthood. This was supposed to be a case about science, but the courts failed to apply it.

And:

Wilson’s execution is an example of what has happened—and could continue to happen—to mentally disabled death row inmates in the Texas justice system —unless state lawmakers finally pass legislation instructing the court to use a science-based definition of mental retardation. State Sen. Rodney Ellis, a Houston Democrat, has vowed to re-introduce a measure that would ensure Texas implements the medically accepted criteria set out by the American Association on Intellectual and Developmental Disabilities to make sure that the “ultimate penalty should be reserved for those that can clearly comprehend why they are going to die.”

Ellis floated a similar proposal in 2010, the last time the Observer reported on Texas’ attempts to execute a mentally retarded prisoner, Daniel Plata. Plata’s life was spared when state District Judge Mark Kent Ellis took issue with methods used by psychologist George Denkowski, whose opinion state prosecutors relied on to argue Plata was eligible for execution, noting that "it is not generally accepted practice within the field of psychological assessment to obtain an IQ score, declare it invalid, and then estimate an IQ score with numbers," as Denkowski had done. Plata is now serving a life sentence in a unit designed for mentally challenged offenders.

In the meantime, as Texas courts rely on stereotypes and unscientific evidence to determine if the roughly dozen men on death row with mental retardation claims should live or die, some prosecutors in new capital punishment cases are working to determine the defendant’s intellectual capacity before they go to trial. This is a key development because, as the Wilson case shows, once an intellectually disabled person is convicted and sentenced to death, neither state judges, or the U.S. Supreme Court, are eager to reverse the mistake.

More from journalist Renee Feltz at the link.

Earlier coverage of the execution of Marvin Wilson begins in the preceding post.

Continued Commentary on the Execution of Marvin Wilson

In fact, because of the volume, I'll break it up into four posts.  This post will contain significant commentary, then a news article by Renee Feltz in the Texas Observer, followed by intenational condemnation, and more on the Steinbeck family.

Let's begin with today's Philadelphia Inquirer editorial, "Can't justify this execution."

Marvin Wilson is dead.

Texas, ever fastidious in carrying out the death penalty, executed the 54-year-old man by lethal injection Tuesday night, even though by clinical standards, he was mentally impaired.

The execution seemed to contradict the U.S. Supreme Court's landmark 2002 decision, which prohibited the execution of the mentally impaired as cruel and unusual punishment forbidden under the Eighth Amendment.

But the now more-conservative court rejected without comment a last-ditch appeal by Wilson's lawyers. That made no sense. For 10 years, a stop sign erected by the Supreme Court had effectively ended the practice of putting people on death row when they are intellectually disabled.

The court correctly pointed out in its 2002 Atkins v. Virginia ruling that people with disabilities in reasoning, judgment, and control of their impulses cannot understand what they have done, or what is happening to them, so they should not be executed.

Unfortunately, that ruling also granted some discretion to the states to determine who should be considered mentally impaired. And Texas used that opening as a free pass to stick to its propensity to execute without distinction.

Andrew Cohen has another classic post at the Atlantic, "Of Mice And Men: The Execution of Marvin Wilson."  Here's the beginning:

At 6:26 p.m local time last night, an hour or so after the last appeal was denied, Texas executed a mentally retarded black man named Marvin Wilson, a man who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes, a 54-year-old man with an IQ of 61* which, his attorneys were quick to point out, is "below the first percentile of human intelligence."

Texas accomplished this unrepentant bit of business despite a 2002 decision of the United States Supreme Court styled Atkins v. Virginia, a ruling which many of us at the time believed meant the end of executions for men, like Wilson, whose simple minds could not fathom the concept of the act. Boy, were we wrong. Today, Atkins seems as dead as Wilson, another example of the misdirection today's justices have perfected, another episode where the practical remedy doesn't remotely match the heralded right.

Without dissent or comment, the Supreme Court just rejected a last-minute appeal by Wilson's lawyers on Tuesday, as if it were somehow clear, to anyone in the world, why the precedent created by the Atkins case wasn't somehow relevant to the Wilson case. After all, wasn't the defendant in the Atkins case, Daryl Renard Atkins, a man with an IQ of 59, just two points above Wilson? And, in Atkins, didn't Justice John Paul Stevens write this for 6-3 majority?

All of Cohen's Atlantic writings on capital punishment are now available as, "The Death Penalty in America."

"Supreme Court must not allow executions of the mentally impaired," is Laura Moye's commentary at CNN.  She's the director of Amnesty International USA's Death Penalty Abolition Campaign.

The United States has not yet arrived at the position that governments should not have the irreversible God-like power to execute its citizens as the majority of countries in the world have. But 10 years ago, the Supreme Court at least recognized that there ought to be limits to this awful power.

The insane, children and those who are not mentally developed are more vulnerable than the rest of us. They are more easily manipulated, they are less capable of making sound judgments and they often need help carrying out basic daily functions. We treat them differently because we are humane and civilized, right?

The U.S. Supreme Court will receive more cases like the Wilson case until it stands up to the states and insists that they develop better scientific and reasonable criteria for judging a person's mental capacity that respect today's standards of decency.

The United States just sustained another black eye on the world stage when Texas was allowed to execute a man with the mind of 7-year-old. The egregiousness of this act is heightened for a country that claims the moral high ground and global leadership on human rights.

Executing a poor, African-American, intellectually disabled man shows once again the arbitrary nature of the death penalty. That was why the Supreme Court halted capital punishment 40 years ago in its Furman v. Georgia decision. In Gregg v. Georgia, the court allowed states to resume the death penalty after a four-year hiatus provided they reserve it for the "worst of the worst" offenders. Wilson hardly exemplifies this principle.

Esquire posts, "The Death Penalty Is Very Good Politics. Don't Forget It."  It's by Charles P. Pierce.

I know I'm supposed to be outraged that Texas executed a guy with an IQ well below optimal room temperature. I know I'm supposed to be outraged that the Supreme Court Of The United States took about eleven seconds out of its busy workday to decide that Texas could kill this guy despite the fact that one of its own precedents would seem to mitigate against it....

The Supreme Court issued a 2002 ruling outlawing the execution of the mentally impaired, but left it to states to determine what constitutes mental impairment. Kovarsky argued that Texas was trying to skirt the ban by altering the generally accepted definitions of mental impairment to the point where gaining relief for an inmate is "virtually unobtainable."

This is because Texas wants to kill people. The governor of Texas, the goodhearted Goodhair with Christ in his heart, likes killing people. (One of the few actual ovations he got during his misbegotten presidential run was when he mentioned how many people he'd killed.) Killing people is very good politics. And, frankly, I agree with Goodhair on this. If you want to have a death penalty, and if you believe in all the barbaric arguments on its behalf, then you simply cannot care whether or not you execute the odd retarded person or two. The most singularly clumsy moral contortions we have in this country take place over the issue of whether you can wedge a death penalty into the system of laws that this country claims to have. You simply cannot do that. A system based on serious due process and on the primacy of the rights of the accused simply does not have the ethical space for a death penalty to inhabit. The death penalty is an act of emotion, of vengeance, now and always. Once you let those factors into your legal system, the "softer" elements of that system cannot prevail. The death penalty itself will not permit it. What remains is that which ultimately came to disgust former Supreme Court Justice Harry Blackmun, who announced late in his tenure that he would no longer "tinker with the machinery of death."

"A Final Note About Marvin Wilson, Texas Executions And The Word ‘Retarded’," by Ian Millhiser at Think Progress.

In writing about Wilson’s final, unsuccessful appeals for his life, I made the editorial decision to refer to his disability by the name currently assigned to it by clinicians and by the Supreme Court. Unfortunately, that name reads much more like a hateful taunt than the kind of term that is appropriate in a scientific text or a courthouse — the clinical and legal name for Wilson’s disability is “mental retardation.”

As some writers that I respect a great deal questioned this editorial decision, I wanted to take a moment to explain why this decision was made, and why I believed it was necessary to avoid papering over a serious flaw in our justice system. I will also note that, after the Supreme Court decided not to halt Wilson’s execution last night, a colleague pointed out to me that, while the current edition of the Diagnostic and Statistical Manual of Mental Disorders uses the term “mental retardation” to describe Wilson’s disability, the forthcoming edition of this manual will likely use the term “intellectual disability.” In the future, I will use this far less distressing term to describe Wilson’s disability, except when quoting court decisions or other documents that still use the soon-to-be-antiquated term.

Some news outlets chose to use terms such as “mentally impaired” or “mentally disabled” to describe Mr. Wilson’s disability, but these terms lack precision. Wilson was not just mentally disabled, he had a very specific mental disability that should have enabled him to invoke the Eight Amendment’s protections against cruel and unusual punishment. In Atkins v. Virginia, the Supreme Court did not hold that all mentally disabled persons cannot be executed, it held that “death is not a suitable punishment for a mentally retarded criminal.” And the relative narrowness of this holding can often leave other mentally disabled persons unable to claim the Constitution’s protection.

"Texas Death Penalty Enforced Based On Outdated Methods Inspired By John Steinbeck Book," by Jason Linkins at Huffington Post.

Given Texas' generally favorable disposition towards using capital punishment, it's not surprising that Wilson ended up on death row. But Wilson's lawyers worked hard to spare him from the death penalty, and they were armed with a 2004 psychological evaluation that determined Wilson had an IQ of only 61. As the Associated Press reported, this was "below the generally accepted minimum competency standard of 70," and thus below the acceptable threshold for execution eligibility established by the Supreme Court's ruling in Atkins v. Virginia. (In that 2002, 6-3 ruling, the Court found that executing mentally inpaired individuals violated the spirit of the ban on cruel and unusual punishment in the Eighth Amendment.)

The AP reported that prosecutors argued that the single psychological test was "possibly faulty" and not "supported by other tests and assessments over the years." State attorneys also pointed to Wilson's facility with his "drug-dealing, street-gambler, criminal lifestyle," in which he demonstrated the ability to "manage money" and implement "inventive" criminal "schemes."

All of which is a solid argument, like it or not. But as it turns out, that's not the entire argument Texas authorities made in their prosecution and condemnation of Wilson. Now, Wilson's death has cast a light on a set of standards that the Texas Court of Criminal Appeals has been using to adjudicate the mental fitness of death row convicts. As it turns out, their determinations are based on standards that are just as (if not more so) "unfounded and highly subjective" as the psychological exam to which prosecutors objected. And those standards aren't so much based in science as they are based on a novel that people read in the eleventh grade.

Earlier coverage of Marvin Wilson's case begins at the link.  Next, coverage of Renee Feltz' latest article for the Texas Observer.

Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Statement From Lee Kovarsky, Marvin Wilson's Attorney

Lee Kovarsky, the attorney for Marvin Wilson has issued the following statement in response to the denial of a stay of execution by the U.S. Supreme Court:

"We are gravely disappointed and profoundly saddened that the United States Supreme Court has refused to intervene to prevent tonight's scheduled execution of Marvin Wilson, who has an I.Q. of 61, placing him below the first percentile of human intelligence. Ten years ago, this Court categorically barred states from executing people with mental retardation. Yet, tonight Texas will end the life of a man who was diagnosed with mental retardation by a court-appointed, board certified specialist.

It is outrageous that the state of Texas continues to utilize unscientific guidelines, called the Briseño factors, to determine which citizens with intellectual disability are exempt from execution. The Briseño factors are not scientific tools, they are the decayed remainder of an uninformed stereotype that has been widely discredited by the nation's leading groups on intellectual disability, including the American Association on Intellectual and Developmental Disabilities. That neither the courts nor state officials have stopped this execution is not only a shocking failure of a once-promising constitutional commitment, it is also a reminder that, as a society, we haven't come quite that far in understanding how so many of those around us live with intellectual disabilities."

- Lee Kovarsky, Attorney for Marvin Wilson
August 7, 2012

"Texas executes man despite his claims of low IQ," is the AP report by Michael Graczyk.

A Texas man convicted of killing a police informant two decades ago was executed Tuesday evening after the U.S. Supreme Court rejected arguments that he was too mentally impaired to qualify for the death penalty.

Marvin Wilson, 54, was pronounced dead at 6:27 p.m., 14 minutes after his lethal injection began at the state prison in Huntsville. Wilson's attorneys had argued that he should have been ineligible for capital punishment because of his low IQ.

Marvin Wilson's execution was the state's seventh execution of 2012; Texas' 484th post-Furman execution since 1982.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

To date, there have been 25 executions in the nation this year; a total of 1,302 post-Furman executions since 1977.  According to TDCJ, seven additional executions have been scheduled for 2012 by state district courts.

Earlier coverage of Marvin Wilson's case begins at the link.

Supreme Court Refuses Marvin Wilson Stay of Execution

The U.S. Supreme Court has refused to stay tonight's execution of Marvin Wilson.

The breaking news AP report is, "US Supreme Court Allows Execution of Texas Inmate."

The U.S. Supreme Court cleared the way for the Tuesday evening execution of a Texas death row inmate whose lawyers say is ineligible for the death penalty because of his low IQ.

Marvin Wilson, 54, was sentenced to death for killing a police informant two decades ago. His attorneys pointed to a psychological test that pegged his IQ at 61, below the threshold of 70 that would suggest he's mentally impaired. But lower courts agreed with state attorneys who questioned the test's validity.

The Supreme Court denied his request for a stay of execution less than two hours before his scheduled 6 p.m. lethal injection.

Attorneys for the state argued Wilson's claim was based on a single 2004 test that may have been faulty and that his mental impairment claim wasn't supported by other tests and assessments of him over the years.

There has been media attention to the case throughout the day.  The Houston Chronicle has posted, "Steinbeck's son decries court opinion that invoked 'Lennie'," by Allan Turner.

Thomas Steinbeck, son of Nobel laureate John Steinbeck and a California-based novelist and journalist, sharply criticized the Texas Court of Criminal Appeals for its reference to the character Lennie Small in a ruling considering factors indicative of retardation.

And:

Thomas Steinbeck's wife, Gail Steinbeck, said the couple was alerted to the reference to the fictional character by an article appearing in the openly anti-death penalty The Guardian, an English newspaper.

She said she showed the article to the writer and "his ears turned red" in anger.

"I couldn't get this thing off my mind," she said. "I was sitting there and my skin kept crawling."

Gail Steinbeck said the court misinterpreted the Lennie Small character, saying, "What Steinbeck was saying in that story had nothing to do with execution. It was about friendship between two men..."

Steinbeck's statement is the second item in the linked post.

The Daily Beast posts, "Retarded—And Condemned To Die In Texas," by Matthew DeLuca.

The Daily Beast has annotated the report of the neuropsychologist, Donald Trahan, which is at the center of Wilson’s petition to the Supreme Court. Trahan wrote the report following his 8-hour assessment of Wilson in 2004. We spoke to both Trahan and Richard Dieter, the executive director of the Death Penalty Information Center.

You can view the annotated Trajan report at the link.

Earlier coverage of Marvin Wilson's case begins at the link.

Updated News Coverage of Marvin Wilson's Case

Today's Houston Chronicle reports, "Inmate's IQ becomes an issue in execution appeal."  It's by Heather Nolan of the Beaumont Enterprise.

Convicted killer Marvin Lee Wilson, set to die Tuesday for a crime committed 20 years ago, said he often was teased about being illiterate when he was growing up in Beaumont.

"People, when they see that you is stupid, dumb and ignorant, they rather make fun of it and laugh about it, make you the laugh of the town, rather than say man, (he) needs some help," Wilson said during a recent interview on death row. "I spent my life fighting trying to defend my honor rather than trying to learn."

His IQ is at the heart of one appeal to his execution, and his attorneys on Tuesday plan to ask a state appeals court to review DNA found at the scene of the crime, where 21-year-old Jerry Robert Williams, a Beaumont Police Department confidential informant, was kidnapped and killed.

In his appeal already before the U.S. Supreme Court, attorney Lee Kovarsky asked justices to overrule lower courts' opinions that Wilson is not mentally retarded and therefore eligible for the death penalty.

The updated AP report is, "Low IQ score focus of Texas death row appeal," by Michael Graczyk.

Death row inmate Marvin Wilson spent his school years in special education classes, got failing or near failing grades and several times received "social promotions" to the next grade level until he finally quit school in the 10th grade.

Wilson's lawyers have asked the U.S. Supreme Court to overrule state and lower federal courts that questioned the validity of a psychological test that pegged his IQ at 61, below the threshold of 70 that would suggest he's mentally impaired and thus, ineligible for capital punishment.

If Texas proceeds with Wilson's scheduled Tuesday execution in Huntsville, he "will own the grisly distinction" of becoming the lowest-IQ Texas prisoner put to death despite the Supreme Court ruling banning the execution of mentally impaired inmates, his lead attorney, University of Maryland law professor Lee Kovarsky, wrote in an the appeal.

"Texas set to execute mentally retarded man," is the UPI filing.

The Supreme Court, in 2002's Atkins vs. Virginia, banned the execution of the mentally retarded. But Texas uses its own process, called Briseno after a state court case, in which the "mildly retarded" can be executed.

In a petition to the Supreme Court, Wilson's lawyers argue using the Briseno process violates the high court ruling in Atkins.

Wilson's petition said a court-appointed neuropsychologist concluded the inmate was mentally retarded -- a conclusion that was never challenged.

"Mr. Wilson received a 61 on the Wechsler Adult Intelligence Scale, Third Edition ('WAIS-III'), recognized as the gold standard of intellectual assessment," his petition said. "The WAIS-III measures verbal and non-verbal (performance) components, yielding a full-scale IQ ('FSIQ') score. Mr. Wilson's FSIQ places him below the first percentile of human intelligence."

Additional news coverage includes:

"Texas Set To Execute Marvin Wilson Despite Diagnosis Of ‘Mental Retardation’," by Joseph Orovic for International Business Times.

"Texas set to execute mentally retarded man," by Brett Wilkins at Digital Journal.

"Marvin Wilson, death row inmate diagnosed as 'mentally retarded,' to be executed," at Global Post.

Earlier coverage of Marvin Wilson's case begins with the preceding post.

Stop This Execution

That's the title of today's Dallas Morning News editorial on the pending execution of Marvin Wilson.

A person whose intellectual disability is a matter of dispute is scheduled to be executed by the state of Texas today. The U.S. Supreme Court should grant a stay, in light of the state’s outrageously loose, nonscientific method of assessing a person’s intelligence.

Executing someone with an intellectual disability — traditionally called mental retardation — violates the Eighth Amendment’s ban on cruel and unusual punishment, the Supreme Court held in a landmark 2002 case, Atkins vs. Virginia.

Since then, death penalty states have devised tests to eliminate questions of a person’s intelligence level. In Texas, however, lawmakers have failed to draw the line between who is and isn’t execution-eligible, based on intellectual function.

That left the Texas Court of Criminal Appeals to its own devices, and it got in way over its head in fashioning legal principles governing who will live and who will die. In doing so, the court groped to define “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.”

The court invoked John Steinbeck’s classic novel Of Mice and Men as a guidepost, saying: “Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt.”

We mean no disrespect to the common sense of Texans, but few of us — judges included — have any business assessing a person’s intellectual abilities when his life is on the line. That should be left to trained experts, but Texas’ post-Atkins routine has no clear requirement on expert input or protocols.

And:

A year before Atkins was decided, the Legislature passed a bill adopting a new procedure on assessing intellectual deficiencies through court-appointed experts. That was a huge step in the right direction, but Gov. Rick Perry vetoed the measure.

Given the spotlight now on a mess that has been festering for a decade, we hope lawmakers get an updated version of that bill back through the Legislature. Texas shouldn’t allow the courts to chisel away at the important protections the Constitution provides.

Thomas Steinbeck, son of the late author John Steinbeck, has issued this statement:

"On behalf of the family of John Steinbeck, I am deeply troubled by today's scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson's case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e, Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way."

- Thomas Steinbeck

Houston Chronicle columnist Lisa Falkenberg writes, "Texas view of executing mentally ill based on fiction."

At 54, Marvin Wilson can't use a telephone book. He reads and writes on a first- or second-grade level. Those who know the Southeast Texas man say he can't match socks, he doesn't understand what a bank account is for, he's been known to fasten his belt to the point of nearly cutting off his circulation. The day his son was born, one sister recalled, he reverted to the familiar habit of sucking his thumb.

His IQ, according to the most valid indicator of human intelligence, is 61, below the first percentile. This was one of many clinical tests and factors that led a neuropsychologist with decades of experience to diagnose Wilson with "mild mental retardation."

Nevertheless, at 6 p.m. Tuesday night, the state of Texas, in your name and mine, is scheduled to kill Marvin Wilson by lethal injection. The U.S. Supreme Court - citing the Eighth Amendment prohibition against cruel and unusual punishment - banned the execution of the mentally retarded a decade ago.

But like other federal mandates, Texas has found a way around this one, too.

The U.S. Supreme Court, in a 2002 decision in a case called Atkins, exempted all mentally ill offenders from execution, in part because those who struggle with impulse control, for example, are less culpable for their crimes. But also because mentally ill offenders may be especially vulnerable to wrongful convictions since they're less able to help attorneys build strong defenses.

Wilson is a textbook example.

And:

The 5th U.S. Circuit Court of Appeals has found the lower court's interpretation reasonable. The Texas Legislature has failed to address the issue after Gov. Rick Perry vetoed an earlier ban on such executions passed by lawmakers.

Wilson's last hope is for the U.S. Supreme Court to step in on Tuesday and grant a stay of execution so that the high court can consider his case along with another similar Texas case pending before it.

Once again we need the nation's highest court to save us from ourselves. To remind us of our humanity. To impose on us the cruel confines of decency.

"Dancing Around the Death Penalty," is Erika Christakis' post at Time.

Central casting couldn’t produce a better illustration of what’s wrong with the death penalty than Marvin Wilson, the 53-year-old Texan with an IQ of 61 who is (barring an unforeseen stay) scheduled for execution this evening. With the mental age of a 6-year-old, he reportedly had trouble mastering basic self-care skills like tying his shoes and counting change. His alleged role in the kidnapping and murder of police drug informant Jerry Williams was always unclear; no evidence or eyewitness reports directly linked him to the murder, and his alleged co-conspirator, Terry Lewis, escaped with a life sentence (with parole) when his wife testified that Wilson had confessed the crime to her.

Yet, the focus on extreme cases like Wilson’s — and whether he is legally and somehow “legitimately” executable despite his mental incapacity — prevents us from facing a larger truth that all state-sanctioned executions are a shameful relic of a bygone era along with the burning of witches and the use of child labor in mines.

And:

One of the hallmarks of a civilized society is the delegation of justice to a third party rather than to a vengeful mob with flaming torches. It’s true that support for the death penalty remains higher (around two-thirds of the population) than in 1966 (42%) when the death penalty was illegal. This puts us in the dubious company of rogue states like Yemen, Pakistan and Syria. But it’s also true that just because the majority wants it does not mean it is correct. We cheapen our government — and ultimately ourselves — by requiring the state to have a hand in what Supreme Court Justice Harry Blackmun once called the “machinery of death.”

Dallas Morning News editorial writer Rodger Jones posts, "Marvin Wilson boasts of chess prowess, hopes for stay on retardation claim," at the Opinon Blog.

"Killing the retarded no big deal in Texas," is Meteor Blades' Daily Kos post.

In the next post, I'll link the updated news coverage.

Earlier coverage of Marvin Wilson's case begins at the link. Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Marvin Wilson's Execution Scheduled for Tuesday

The Nation posts, "Will Texas Execute a Man With an IQ of 61?"  It's by Liliana Segura.

If 54-year-old Marvin Wilson is put to death on Tuesday, it will not be because Texas denies that he is intellectually disabled, or as the legal literature puts it, “mentally retarded.” This much, the state recognizes. It just does not believe that Wilson is disabled enough to be executed in Texas—a flagrant violation of the 2002 Supreme Court ruling in Atkins v. Virginia, which held that “the mentally retarded should be categorically excluded from execution,” period.

Thus, barring a last-minute intervention, a man who has been diagnosed with an IQ of 61 and who sucked his thumb well into adulthood, now faces the prospect of being strapped to a gurney and injected with lethal chemicals until he is pronounced dead. “It doesn't usually get to this point when you have an Atkins claim this strong,” his lawyer, Lee Kovarsky, told me over the phone on Sunday. “This claim is really sort of the worst of the worst.”

Kovarsky grew up in Texas and has seen his share of death row injustices. Yet, clients like his are hardly exceptional. “If getting the death penalty is like getting struck by lightning,” he says, drawing on Justice Potter Stewart's famous quote about the arbitrariness of capital punishment, “then it seems to strike offenders with MR a lot. Because their disability prevents them from effectively disputing guilt or culpability, they end up on death row for some of the least aggravated first-degree murders that are tried to verdict."

Indeed, a list compiled by the Death Penalty Information Center shows forty-four such prisoners executed before Atkins, noting that some claiming intellectual disability have been killed since then. Others, like Johnny Paul Penry—a man with an IQ of 56 who did not know how many hours there were in a day, still believed in Santa Claus and came within days of execution in 2000—are now imprisoned for life. (The DPIC lists twelve more Texas prisoners whose sentences were reduced after Atkins.)

"Texas set to execute death row inmate diagnosed as 'mentally retarded'," by Ed Pilkington for the Guardian.

Barring a last minute intervention by the courts, Marvin Wilson, 54, will be put to death by lethal injection even though he has been subjected to scientifically-recognised tests that show him to be intellectually disabled – or "mentally retarded" as the US legal system still calls the condition.

In 2002, the US supreme court banned executions for all such prisoners under the Eighth Amendment of the constitution that prohibits excessive punishment. The 2002 ban, in Atkins v Virginia, is categorical: individuals with mental retardation cannot be put to death. The court allowed some discretion on the part of individual states to devise procedures for administering the injunction, but no right to ignore it.

Texas took that discretion to mean – wrongly in the view of many lawyers and mental health experts – that it could set its own definition of retardation.

Instead of a clinical or scientific approach, based on widely recognized tests set out by the American Association on Intellectual and Developmental Disabilities, Texas decided to go its own way.

It came up with a set of seven criteria, known as "Briseno factors" after the decision that announced them, to determine which prisoners with learning difficulties should live and which should die.

The determinants were posited around the character Lennie Small in Steinbeck's 1937 novel Of Mice and Men.

"Most Texas citizens," the argument ran, "might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt" from execution. By implication anyone less impaired than Steinbeck's fictional migrant ranch worker should have no constitutional protection.

WestLaw Insider posts, "Texas to execute mentally retarded man; state claims man isn’t mentally retarded."  It's by Jeremy Byellin of Thomson Reuters.

In 2002, the Supreme Court decided Atkins v. Virginia, which categorically prohibited the imposition of the death penalty on any mentally retarded individual.

If Wilson is truly mentally retarded, how is the state of Texas able to carry out his execution?

Simply put, by changing the definition of “mentally retarded.”

Texas did this in 2004 with the criminal appellate ruling Ex parte Briseño.

The ruling held that the Supreme Court left “to the States the task of” determining who, in fact, was mentally retarded within the definition of which there is a “national consensus.”

The Briseño court then went on to the find that the consensus in Texas is that Lennie, the character from John Steinbeck’s Of Mice and Men would be considered mentally retarded.

However, medical definitions of mental retardation, such as those set by the American Association on Intellectual and Developmental Disabilities (AAIDD), are far too broad, since they include those individuals that could become “mentally-unimpaired citizens if given additional social services support.”

The Briseño opinion then goes on to list seven factors to determine whether an individual is, in fact, mentally retarded for the purposes of determining whether imposing the death penalty would be unconstitutional.

These Briseño factors do not take any medical or scientific evidence into account.

Instead, they are all based on external layperson observations, and the wording is such that the presiding judge has almost complete discretion in applying them.

Earlier coverage of Marvin Wilson's case begins at the link.  Related posts are in the mental retardation index.  As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

If Texas executes Marvin Wilson, it would be the state's seventh execution of 2012; Texas' 484th post-Furman execution since 1982.  Texas accounts for more than 37% of the nation's executions.

To date, there have been 24 executions in the nation this year; a total of 1,301 post-Furman executions since 1977.  According to TDCJ, seven additional executions have been scheduled for 2012 by state district courts.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CST), Thursday.

Mentally Retarded and on Death Row

That's the title of an editorial in today's New York Times on the Texas case of Marvin Wilson.

Marvin Wilson, with an I.Q. of 61, is scheduled to be put to death in Texas on Tuesday. His execution would directly contradict the Supreme Court’s 2002 ruling in Atkins v. Virginia that “the mentally retarded should be categorically excluded from execution” because of “their disabilities in areas of reasoning, judgment and control of their impulses.” The court should accept Mr. Wilson’s case for review and end Texas’s illegal defiance of its explicit holding that the death penalty for the mentally retarded is unconstitutional.

The court found a national consensus against executing the retarded. But it said states must apply professional standards in identifying people with retardation because “not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.”

The Texas Court of Criminal Appeals in a 2004 ruling perversely read that directive to mean that the state could devise its own restricted test for retardation. It bluntly rejected the Supreme Court’s “categorical rule making such offenders ineligible for the death penalty.” It defiantly refused to recognize “a ‘mental retardation’ bright-line exemption” even for those who “legitimately qualify” as mentally retarded for other purposes.

The Texas court’s ruling was the basis for its rejection of mental retardation claims in at least 10 death penalty cases.

The United States Court of Appeals for the Fifth Circuit has deepened this injustice. It has repeatedly denied habeas corpus appeals by death row inmates under the Antiterrorism and Effective Death Penalty Act, insisting that state court rejections of mental retardation claims were not “contrary to” or “an unreasonable application” of “clearly established federal law.”

And:

The court must stop this cruel and unconstitutional execution of a mentally retarded man.

"Advocates: Don't Execute Mentally Retarded Man," is Brandi Grissom's Texas Tribune post.

A state senator joined anti-death penalty advocates on Friday in calling on Texas to halt next week's execution of Marvin Wilson, whose lawyers argue he is mentally retarded.

“Unfortunately, Texas continues to circumvent the U.S. Supreme Court’s categorical ban on the execution of offenders with mental retardation by developing its own set of determining factors for who will be exempt from execution," state Sen. Rodney Ellis, D-Houston, said in a press release.

Wilson, who was convicted of shooting to death 21-year-old Jerry Robert Williams of Beaumont nearly 20 years ago, is set to die on Tuesday. His lawyers have appealed to the Supreme Court, arguing that the standard Texas courts use to determine mental retardation is unreasonable and asking the court to clarify how states should gauge mental competency for execution.

And:

In their petition to the Supreme Court, Wilson's lawyers argue that the Texas criteria "lack any scientific foundation" and unfairly exclude people who would otherwise legitimately be considered clinically mentally retarded. 

"It is consistent with an approach that has gotten more and more aggressive in violating the rule that states cannot execute people with mental retardation through a process of defining that category down," said Wilson’s attorney, Lee Kovarsky, an assistant professor of law at the University of Maryland.

Wilson's lawyers said he scored a 61 on the Wechsler Adult Intelligence Scale, placing him below the first percentile of human intelligence. Defense experts have diagnosed Wilson with mild retardation in comparison to others with the same diagnosis. And, the lawyers said, no state expert or evidence has contested Wilson's mental retardation claim. At the time of Wilson's original trial in 1992, Kovarsky said, lawyers did not present evidence of mental retardation because it would have been considered a factor that would have made him more dangerous and more likely to be sentenced to death.

"Marvin Wilson, Texas Man With 61 IQ, To Be Executed In Days," by John Rudolf at Huffington Post.

Marvin Wilson was always slow.

Growing up in extreme poverty in east Texas in the 1960s, he struggled with basic tasks, like tying his shoes, counting money, and mowing the lawn. He fared miserably in school, earning D's and F's in special education classes and failing the 7th grade. The other kids called him "dummy" and "retarded." He was socially promoted to the 10th grade, then dropped out for good.

As an adult, he did manual labor and had a son with a common-law wife. But he remained extraordinarily childlike, according to his younger sister, Kim Armstrong.

"I couldn't believe it when I saw him still sucking his thumb when his son was born," Armstrong said in a 2003 affidavit. "Marvin was in his twenties."

Yet Wilson, now 53, was not slow enough for the Texas and federal courts that authorized his death by lethal injection next week for a 1992 drug-related murder by ruling that he is not covered by a 2002 Supreme Court ruling prohibiting the execution of the mentally retarded.

Human rights groups, legal experts and a Texas state senator denounced the imminent execution as a clear flouting of the law, while Wilson's attorneys have filed a last-ditch appeal with the Supreme Court, and requested a stay of execution from the Texas Board of Pardons and Gov. Rick Perry.

In their bid to halt the execution, Wilson's allies point to a 2004 psychological exam that measured his IQ at just 61. In Texas, the benchmark for mental retardation is an IQ of about 70 or below. Other states use a threshold IQ of 75 or lower.

Earlier coverage of Marvin Wilson's case begins at the link.  Related posts are in the mental retardation index.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Nygren on the Marvin Wilson Case

Margaret A. Nygren is Executive Director of the American Association On Intellectual and Developmental Disabilities.  Her OpEd, "Texas should not execute intellectually disabled man," in today's Houston Chronicle tops news of Marvin Wilson's case.

In my work as the executive director of the American Association on Intellectual and Developmental Disabilities (AAIDD), I have worked with many people who have intellectual disability, formerly known as mental retardation. Most of us know people who have intellectual disability through our extended circle of friends, family, church, schools and the like. We may be familiar with the diversity of people with intellectual disability, and many have first-hand experience of some of the vast variations in how this disability appears. However, despite the variety of ways that intellectual disability may appear to a layman, it is a medical diagnosis based on clinical indications; an individual either has it, or he does not.

In 2002, when the U.S. Supreme Court categorically banned the execution of persons with (what was then known as) mental retardation in Atkins v. Virginia, the court specifically endorsed AAIDD's clinical definition of intellectual disability. Indeed, the elements of the current clinical conditions to diagnose intellectual disability have been consistent for nearly 100 years.

Yet Texas plans to execute a man named Marvin Lee Wilson next Tuesday, Aug. 7, despite an IQ score of 61 and a complete evaluation by a specialist, both of which confirm that Wilson has intellectual disability, with the specific diagnosis of mild mental retardation. Make no mistake, if a trained clinician finds that an individual has an intellectual disability, the fact that the impairment is deemed mild rather than severe does not negate nor diminish the diagnosis or its profound impact on an individual's abilities.

And:

Intellectual disability is a medical condition and should be assessed by a specialist. Unfortunately for its citizens, Texas evaluates defendants for intellectual disability using factors that are not used by medical professionals, and are based on false stereotypes that exclude all but the most severely incapacitated. Evaluating individuals using these factors, called the Briseño factors, is fundamentally incompatible with the scientific and clinical understanding of intellectual disability.

When Wilson came before the state of Texas to prove his intellectual disability and seek his constitutional protection from execution, the state did not present any evidence against him having an intellectual disability. The state did not provide any expert witnesses (or witnesses of any kind) to refute the court-appointed, board-certified expert's diagnosis of mild mental retardation. However, because Texas unfairly uses unscientific factors to cherry-pick which people with intellectual disability will be exempt from execution, Wilson was essentially deemed "not disabled enough" to receive the constitutional protection he is entitled to because of his medical condition.

This is simply not good enough.

"Texas Messes with Court Precedent, Prepares to Execute Another Mentally Disabled Person," by Jeremy Leaming at the American Constitution Society blog.

In summer 2002, the U.S. Supreme Court ruled that it is unconstitutional for states to execute mentally disabled people. But its opinion in Atkins v. Virginia has failed to take hold in Texas, a state that as University of Colorado law school professor Paul Campos puts it “likes killing people, and it’s not terribly particular about whom it kills.”

And:

The state is on the verge of executing yet another mentally disabled man, Marvin Wilson. Wilson’s attorney Lee Kovarsky, an assistant professor of law at the University of Maryland, has urged the Supreme Court to intervene to stop the execution set for Aug. 7. Wilson was convicted of allegedly killing a drug informant, but Kovarsky’s petition for a writ of certiorari casts serious doubt on that.

Citing Atkins, Wilson’s attorney notes that Donald Trahan, a neuropsychologist appointed by the court to examine Wilson, diagnosed him as suffering “mental retardation.” Wilson, Kovarsky continues, “received a 61 on the Wechsler Adult Intelligence Scale …, recognized as the gold standard of intellectual assessment. The evaluation places Wilson well below the “first percentile of human intelligence.”

Think Progress posts, "Texas Set To Unconstitutionally Execute A Mentally Retarded Man Next Week," by Ian Millhiser.

Texas hopes to exploit a potential loophole in the Supreme Court’s decision declaring executions of the mentally retarded unconstitutional in order to move forward with this execution. Although the Court’s decision in Atkins v. Virginia references the clinical definition of mental retardation — a person with an IQ of 70 or less who demonstrated “significantly subaverage intellectual functioning” before the age of 18 is generally considered mentally retarded — it also left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” So Texas has designed its own, narrow definition of mental retardation that bears little resemblance to the one used by scientists and clinicians. A petition is currently pending in the Supreme Court seeking to close this loophole and save Wilson’s life.

The Beaumont Enterprise Bayou blog posts, "Marvin Lee Wilson: Is Beaumont’s current condemned man mentally retarded?"

On Tuesday, Texas will execute Marvin Lee Wilson for the 1992 murder of a confidential Beaumont police informant.

Texas is executing people like it is its job.

We’re on pace to kill off 17 people by the end of the year, matching 2010′s torrid pace.

For Wilson, this is about to be the culmination of a long and controversial legal fight. The question: Is Wilson mentally retarded? ‘Cause based his IQ numbers, it would be unconstitutional to put him to death.

"Texas man due to be executed despite evidence of mental disability," at Amnesty International.

A decade ago, in Atkins v. Virginia, the US Supreme Court prohibited the execution of offenders with “mental retardation”, but left it up to the individual states as to how to comply with the ruling.

“While a majority of countries have stopped executing anyone, let alone people with mental disabilities, the USA continues to buck this global trend, with Texas all too often leading the way,” said Rob Freer, Amnesty International’s USA Researcher.

“And leaving it up to Texas how to comply with the Atkins ruling appears to have been something akin to leaving the fox in charge of the henhouse.”

Before the Atkins ruling, Texas executed more inmates diagnosed with “mental retardation” than any other state. A decade on, its legislature has yet to enact a law to comply with Atkins, and there are fears that “temporary” guidelines developed by the Texas Court of Criminal Appeals (TCCA) in 2004 are letting the state execute offenders who should be exempted from this punishment under the Constitution.

Earlier coverage of Marvin Wilson's case begins at the link.  Related posts are in the mental retardation index.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Texas’ Next Dubious Execution

That's the title of Paul Campos' post at Salon.  It's subtitled, "The Supreme Court said it's illegal to execute the mentally retarded. But Texas has found ways around the ruling."  Campos is a professor of law at the University of Colorado at Boulder.  Here's the beginning:

The state of Texas likes killing people, and it’s not terribly particular about whom it kills. In recent years Texas has executed people who were severely mentally ill, represented by frighteningly incompetent lawyers, and almost certainly innocent.

The latest innovation in justice Texas-style is illustrated by the state’s plan to execute Marvin Wilson, a mentally retarded prisoner with an IQ of 61. Wilson is scheduled to die by lethal injection on Tuesday, and, if the execution isn’t stopped, he will become the clearest case yet of a mentally retarded person being put to death by the state, despite a decade-old Supreme Court decision barring such judicial killings.

In 2002 the Supreme Court ruled that executing the mentally retarded violated the Eighth Amendment. The Court left it up to individual states to decide on what procedures to use when determining whether defendants were in fact mentally retarded, or were falsely claiming to be so. (In a characteristically brutal dissent Justice Scalia argued that the inconvenience of sorting out false claims from valid ones was a good reason for not barring such executions.)

Subsequently, almost every capital punishment state that didn’t already have a statute dealing with the issue passed a law telling courts how to handle capital cases involving a claim of mental retardation. But the Texas legislature was too busy with such things as passing laws requiring students to pledge allegiance to the flags of the U.S. and Texas and spend a minute in “silent reflection” (right-wing code for prayer) to ever get around to dealing with the matter.

So it was left to the Texas courts to decide how to interpret the Supreme Court’s directive. The courts proceeded to formulate an extremely vague and manipulable test, which as a practical matter left it up to juries and judges to decide on a case by case basis if a defendant was, as it were, retarded enough to get the benefit of Eighth Amendment protection from execution.

"Aug. 7 execution date set for inmate who claims mental retardation," is by Jordan Smith for the Austin Chronicle.

Continuing a pace of executions that, if it holds, would nearly tie 2010's 17 executions), on Aug. 7 Texas is slated to put to death Marvin Lee Wilson, sent to death row in 1998 for the 1992 murder of a police informant in Beaumont.

Wilson had one previous date with the death chamber, but it was withdrawn after a question was raised about whether Wilson is mentally retarded, which would violate the ban on cruel and unusual punishment, per a 2002 U.S. Supreme Court ruling. Initially, the 5th U.S. Circuit Court of Appeals ruled that Wilson's claim of mental retardation couldn't be heard because his lawyer had missed a deadline for filing an appeal. The decision was widely criticized, and the appeals court ultimately reversed its ruling, allowing Wilson's claims to be raised in federal court. Still, Wilson has not been able to meet the burden for proving mental deficiency, which includes showing that his low IQ existed before he turned 18. In 2004, lawyers presented evidence that Wilson's IQ was 61; a 1971 test measured it at 73, and in 1987 it was recorded as 75. However one of Wilson's current attorneys, Lee Kovarsky, says that the previous tests were not comprehensive, and thus not dispositive of whether Wilson is actually mentally retarded. Wilson has appealed to the U.S. Supreme Court, seeking a stay of execution. At issue is whether the state's test for determining mental retardation is sufficient to satisfy the constitution.

Vibe posts, "Texas Set to Execute A Mentally Disabled Man – Should We Revisit the Death Penalty?"

Marvin Lee Wilson is scheduled to die. Barring a stay of execution, the 54-year-old man will be put to death in Texas on August 7, 2012. After nearly 18-years on death row and several appeals stemming from the 1992 murder of Jerry Robert Williams, an alleged police informant, Wilson’s life may finally come to an end.

But there’s just one problem. With an I.Q. of just 61, Wilson was diagnosed as being mentally retarded by a court-appointed neuropsychologist, leaving many to wonder if it’s ethical to execute him.

Despite his disability, his mental state hasn’t factored into his appeals thus far.

"Texas Judges Doing Brain Surgery," is the post at Simple Justice.

There is hard science. There is soft science.  And then there are really heart-warming stories that seem to have some sort of connection to science, in a non-analytical sort of way.  Which of these do you suppose the Texas Court of Criminal Appeals prefers?

Earlier coverage of Marvin Wilson's case begins at the link. Related posts are in the mental retardation index.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Marvin Wilson

The Grio posts, "Texas may execute mentally disabled man, Marvin Lee Wilson, on August 7th," byZerlina Maxwell.

On August 7, 2012, a 54-year-old man named Marvin Lee Wilson is scheduled to die by lethal injection. The state of Texas will execute him for the 1992 murder of Jerry Robert Williams.  Wilson was convicted of shooting Williams and leaving him to die allegedly because Williams was a drug informant for the police.  Wilson’s execution has gone through a long appeals process, but after nearly 18 years on death row an execution date approaches.

While executions in the state of Texas aren’t necessarily newsworthy, as the state executes convicted criminals at a rate four times higher than any other state, this particular execution stands out because Wilson is reportedly mentally disabled.

Wilson has an I.Q. of only 61 on the Wechsler test which falls well under the legal standard for mentally disabled.  During the appeals process Wilson was diagnosed with mental retardation by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as a mental retardation specialist.

Previously, Wilson’s mental disability was not allowed to factor into his case in federal court because his  lawyer at the time missed a filing deadline.  His current attorney, Lee Kovarsky Assistant Professor at the University of Maryland Law School, told the Grio that Wilson’s current defense team has filed a petition for writ of certiorari with the U.S. Supreme Court.

And:

“This is a very unique case,” says Kovarsky, “This is about as strong of an Atkins claim as you will see” referring to the 2002 U.S. Supreme Court case Atkins v. Virginia where the Court held that executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment.

"Only in Texas: the Grave Error of Using Literature Rather than Scientific Methodology to Assess Mental Retardation in a Capital Sentence Case," by Danielle Citron at Concurring Opinions.

In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Supreme Court observed that people with MR are less culpable for their crimes and that they are not equipped to mount effective criminal defenses. As a result, they are particularly vulnerable to wrongful convictions, inflated culpability assessments, and erroneous findings of leadership in multi-party crimes. In defining MR, Atkins relied on the scientific criteria set forth by the leading clinical authorities, including what was then known as the AAMR (the American Association on Mental Retardation). The AAMR thereafter changed its name to the AAIDD (the American Association on Intellectual and Developmental Disabilities).

And:

Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with MR in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption. The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind.  Although literature can tell us much about society and  law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation.  That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals.

As the AAIDD wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.”

I’m thankful to my colleague Lee Kovarsky, an extraordinary habeas scholar and tireless advocate, who has been representing Mr. Marvin and for his incredibly hard work on Mr. Marvin’s cert petition.

"Another Bizarre and Troubling Texas Execution by August 7?" is the Balkinization post by Frank Pasquale.

As Danielle Citron observes at Concurring Opinions today, Texas has become the United States' "most extreme outlier on all issues pertaining to capital sentencing."  In yet another bizarre twist, Texas appears ready to ignore the report of a "board certified neuropsychologist with 22 years of clinical experience" in favor of a seat-of-the-pants characterization of a death row inmate's cognitive capacity.  The case involves "Marvin Wilson, a man who received [an IQ] score placing him below the first percentile of human intelligence." 

Charles Smith also picked up on the Concurring Opinions post in, "Marvin Wilson: How Texas is using literature rather than scientific methodology to kill a clearly retarded man - to circumvent the U.S. Supreme Court."

Adam Liptak wrote about the case in December 2005 in the New York Times report, "Date Missed, Court Rebuffs Low-I.Q. Man Facing Death."

Though the Supreme Court has prohibited the execution of the mentally retarded, a Texas death row inmate who may be retarded cannot raise the issue in federal court because his lawyer missed a filing deadline, a federal appeals court ruled this week.

The inmate, Marvin Lee Wilson, has "made a prima facie showing of mental retardation," a unanimous three-judge panel of the United States Court of Appeals for the Fifth Circuit wrote in an unsigned decision on Tuesday, meaning the court presumed Mr. Wilson to be retarded for purposes of its ruling.

But the panel said it was powerless to consider the case because Mr. Wilson's lawyer filed papers concerning his retardation in a federal trial court without first obtaining required permission from the appeals court, which he did not seek until a deadline had expired.

"However harsh the result may be," the panel said, its hands are tied by deadlines established in a 1996 federal law, the Antiterrorism and Effective Death Penalty Act. The same law now forbids Mr. Wilson, convicted of killing a police informant, to appeal the Fifth Circuit's ruling to the Supreme Court.

The Fifth Circuit court, which hears appeals from Texas, Louisiana and Mississippi, has been frequently criticized by the Supreme Court for its decisions in capital cases. Still, said James W. Marcus, executive director of the Texas Defender Service, the Wilson decision surprised him.

"Executing someone who is categorically exempt from the death penalty," Mr. Marcus said, "would be new ground, even for Texas."

Days after Liptak's article, the Times published the editorial, "Rushing to Execute in Texas."

It is easy to see how Mr. Wilson's lawyer made a mistake. The morass of rules that have developed for when death row inmates must file papers in different state and federal courts makes occasional errors inevitable. Whatever the skills of Mr. Wilson's lawyer, the system as a whole is filled with overburdened, unenergetic and incompetent lawyers, as the Texas Defender Service documented in a report entitled "Lethal Indifference."

It is the courts' job to ensure that inadequate lawyering does not lead to people who are not eligible for the death penalty, like Mr. Wilson, being executed. But the Fifth Circuit did not even bother to address his most critical claim: that a federal law about how cases are to be handled should not trump the Supreme Court's determination that the Constitution does not permit a whole class of people to be put to death.

If a lawyer's slip-up can lead to the execution of someone who is exempt from capital punishment, the American justice system is diminished.

Related posts are in the mental retardation index.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

The Cautionary Instruction

That's the title of an OpEd in today's Pittsburgh Post-Gazette subtitled, "Three states, three approaches and three very different results."  It's by Matt Mangino, former district attorney of Lawrence County, Pennsylvania, and a member of the Pennsylvania Board of Probation and Parole.

In 2007, the U.S. Supreme Court decided Panetti vs. Quarterman.   The court was asked to decide whether a condemned prisoner had a "rational understanding" of his crime and punishment for purposes of execution.

The court also addressed the retributive purpose of capital punishment, "it might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole [to] affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed."

Cases pending before courts in Texas, Oregon and Georgia point to the absurdity of death penalty litigation. In Georgia, the court stayed the execution of a man with an IQ of 69, not because he is mentally retarded, but because a state court wants to examine a newly implemented execution protocol. In Texas, the court said a schizophrenic killer is competent and his execution should proceed. In Oregon, where the governor granted a reprieve to all condemned killers, one man is demanding to be executed.

Mangino then goes into the cases of Warren Hill, Marcus Druery, and Gary Haugen; and:

Three states, three different approaches and three very different results. The news this week points to the absurdity of a 33 state approach to capital punishment.

Earlier coverage of the three cases is linked above.  Related posts are in the competency, mental illness, and mental retardation category indexes.  In April, I added the competency category index.  Earlier posts dealing with compentency are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.

Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

There are several notable posts on the question of competency to be excuted:

• The Criminally Mentally Ill
• Scholarship - Mental Illness & Competency to Be Executed

Additional Coverage of the Warren Hill Stay of Execution

The updated AP report is, "Georgia high court grants stay of Monday execution," by Kate Brumback.  It's via the Montgomery Advertiser.

The Georgia Supreme Court stayed Monday's scheduled execution of a man convicted of killing a fellow prison inmate, saying it would review a defense challenge based on the state's recent switch to a single-drug injection.

Warren Lee Hill had been scheduled to be executed at 7 p.m. at the state penitentiary in Jackson. But the state high court said Monday afternoon it was unanimously staying the execution to consider Hill's appeal challenging Georgia's shift last week to a single-drug execution method.

The 52-year-old's case had drawn national attention as it put a spotlight on Georgia's toughest-in-the nation requirement for death row inmates who seek to prove they are mentally disabled. Hill's lawyers have argued he is mentally disabled and should be spared execution for that reason since the U.S. Supreme Court has ruled that executing the mentally disabled is cruel and unusual and Georgia law prohibits it.

The state has said Hill's defense lawyers failed to prove beyond a reasonable doubt that Hill is mentally disabled, which is required under Georgia law.

The high court on Monday also denied Hill's request that it reconsider a challenge on those grounds.

And:

Hill was the first Georgia inmate scheduled to be executed since the state announced last week it was changing from a three-drug combination to one lethal dose of the sedative pentobarbital to carry out court-ordered death sentences. The state previously used pentobarbital to sedate inmates before injecting pancuronium bromide to paralyze them and then potassium chloride to stop their hearts. Hill's execution, initially scheduled for last Wednesday, was rescheduled for Monday when authorities announced the change in the execution procedure.

I am profoundly grateful that the Supreme Court entered this stay of execution," said Hill's lawyer, Brian Kammer, after learning of the court's decision to hear the appeal based on the execution method change.

At issue, the court said, was the question raised by the defense as to whether the switch to a single drug was subject to the state's Administrative Procedure Act, which requires public hearings before such a change is made. The high court's order did not specify how long its consideration of the issue would take.

The state attorney general's office had no comment on the court's decision to stay the execution.

Reuters posts, "Georgia inmate gets stay hours before scheduled execution," by David Beasley.

The court said it would decide whether the recent decision by the Department of Corrections, switching the lethal injection process from three drugs to one, violated the state's Administrative Procedures Act.

The act requires a 30-day public comment period before a change in procedure is allowed.

And:

Georgia officials did not say what prompted the change to the single drug. But in a legal challenge filed on Friday, Hill's attorney, Brian Kammer, said Georgia's supply of pancuronium bromide - one of the three drugs previously used in lethal injections - expired on July 1.

"Court issues stay in Ga. execution," at UPI.

"US state grants death row inmate temporary reprieve," by Chantal Valery for AFP.

"Georgia Supreme Court Stays Execution," by Steve Eder at the Wall Street Journal Law blog.

The Georgia Department of Corrections said in a statement last Tuesday that it “has been using pentobarbital in its execution process, and based upon the experience of other states and competent medical testimony, the drug has proven to be effective.”

A shortage in the supply of such drugs has impeded executions. Georgia said the drug supply was a consideration but that “responsible and professional” work was the main concern.

The Atlanta Journal-Constitution reported on Monday that a county judge had expressed “frustration” that the state’s supreme court hadn’t decided the issue, and in a bench ruling, encouraged the top court to rule.

The state’s position is that the change was not subject to the Administrative Procedure Act and therefore did not require a 30-day public comment period prior to a switch in protocol, according to the AJC article.

"Georgia Supremes Grant Last-Minute Execution Stay, But Not Because of Inmate’s IQ," by Debra Cassens Weiss for ABA Journal.

The Georgia Supreme Court order in Hill v. Owens is available in Adobe .pdf format.

Earlier coverage of Warren Hill's case begins at the link.

Hill Execution Stayed

The Georgia Supreme Court has stayed tonight's scheduled execution.  The ruling is available in Adobe. pdf format.

"State Supreme Court grants stay of execution to killer," is Bill Rankin's Atlanta Journal-Constitution post.

The Georgia Supreme Court on Monday unanimously granted a stay of execution to Warren Hill, a death-row inmate who was scheduled to be put to death at 7 p.m.

The court said it would decide whether the Department of Corrections' recent decision to switch its lethal-injection process from three drugs to one violates the state Administrative Procedure Act.

Earlier Monday, a Fulton County judge had expressed frustration the state Supreme Court had yet to decide the issue on the merits. In a ruling from the bench, Superior Court Judge Craig Schwall encouraged the court to issue a substantive ruling on the issue.

The state has contended the change in the lethal-injection procedure was not subject to the Administrative Procedure Act, which requires a 30-day public comment period before a change in procedure is allowed.

"Georgia Supreme Court Stays Hill's Execution," is the AP report, via WMAZ-TV.

"Condemned Georgia inmate gets reprieve," at CNN.

Earlier coverage of Warren Hill's case begins at the link.

Warren Hill - Deadline Today

"Judge rules against inmate scheduled to be executed today," is the latest update from the Atlanta Journal-Constitution.  It's by Bill Rankin.

A Fulton County judge on Monday ruled against an inmate who is scheduled to be executed tonight, saying Georgia's recent changes to its lethal-injection protocol do not violate state law.

Superior Court Judge Craig Schwall, however, said he would like the Georgia Supreme Court to issue a substantive decision as to whether the changes violate the state Administrative Procedure Act. The law requires a 30-day public comment period before changes are implemented. Hill's attorneys contend the change in protocol needs to go through such procedures.

Warren Hill is on death row for killing a fellow inmate in a southwest Georgia prison. He is scheduled to be put to death at 7 p.m.

Hill is also challenging the state's law that determines whether an inmate is mentally disabled — and thus ineligible to be executed. Two state judges — both hearing appeals filed by Hill years after his 1991 trial — have found that Hill is more likely than not to be mentally disabled. But Hill has not cleared the state's stringent legal threshold that requires capital defendants to prove their mental retardation beyond a reasonable doubt. Georgia's law is the only one of its kind in the country.

There is extensive news coverage and commentary.

"Last Chance to Stop Tonight's Execution," from Courthouse News Service.

"Georgia inmate's impending execution stirs controversy," by Melanie Eversley at USA Today.

"US state of Georgia to execute mentally handicapped man," by AFP.

"'Cruel' Georgia Set To Execute Mentally Handicapped Warren Hill," by Ewan Palmer For International Business Times.

Among the prominent commentaries:

"Supreme Court: Protect Intellectually Disabled GA Man From Execution," is by Margaret Nygren at Huffington Post.  She's the Executive Director and CEO, American Association on Intellectual and Developmental Disabilities.

My organization, the American Association of Intellectual and Developmental Disabilities (AAIDD), is the oldest professional society concerned with intellectual and developmental disabilities. For decades AAIDD has provided clinicians, courts and government agencies with authoritative definitions and explanations of intellectual disability and protocols for appropriate treatment and support systems.

In 1988, Georgia became the first state to prohibit the execution of people with intellectual disability. Georgia inspired a national movement to protect the intellectually disabled from execution, culminating in Atkins v. Virginia, a 2002 U.S. Supreme Court decision which prohibited the execution of people with intellectual disability as unconstitutional. In the Atkins decision, the Supreme Court specifically endorsed AAIDD's clinical definition of what was known as "mental retardation," recognizing that people with intellectual disability are both inherently less culpable and are also at special risk of wrongful execution because of the difficulty faced by courts and attorneys in identifying the syndrome based on superficial indicators of "normality."

Warren Hill has been found to have an intellectual disability by numerous experts as well as a Georgia state court judge. This finding has been unchallenged by opposing counsel on appeal or by reviewing courts. Standardized test scores from his elementary and middle schools placed Mr. Hill in the bottom 2-3% of his peers in academic ability. Mr. Hill's elementary, middle and high school teachers testified that he demonstrated clear evidence of intellectual disability throughout his schooling and was the beneficiary of "social promotion" because of the lack of special education programs at his schools. However, despite the overwhelming evidence of his disability, the state of Georgia's standard for proving intellectual disability -- the strictest in the nation -- has left Mr. Hill unprotected despite a Supreme Court ruling which prohibits executing the intellectually disabled.

In Georgia, the state which led the nation in protecting those with intellectual disability from capital punishment, defendants must prove that they are intellectually disabled "beyond a reasonable doubt," the strongest standard of proof in the law. As Dr. Robert Latzman, a clinical psychologist at Georgia State University, stated, the problem is that lawyers often look for black and white answers, adding, "we don't do that in the psychology world. We don't play in yes and no's, we play in statistics and probability. That makes 'beyond a reasonable doubt' an impossible standard to attain."

Legal experts have noted that the U.S. Supreme Court's landmark ruling in Atkins v. Virginia has been undermined by varying state standards for proving intellectual disability.

"Warren Hill: 10 reasons why Georgia should not execute him," is by Ed Pilkington for the Guardian.

Earlier coverage of Warren Hill's case begins at the link.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.  Related posts, in the mental retardation index.

An Update on Warren Hill From Georgia

The Atlanta Journal-Constitution posts the AP report, "Ga. inmate's lawyer asks court to halt execution."

A state court has declined to halt the execution of a Georgia death row inmate set to die Monday.

A Butts County Superior Court judge Thursday denied requests filed by Warren Lee Hill's lawyer. Lawyer Brian Kammer argued Hill is mentally disabled and shouldn't be executed. Similar requests are pending at the U.S. Supreme Court.

The court said Hill has proven an IQ of 70 beyond a reasonable doubt, and he meets the overall criteria for being mentally disabled by a preponderance of the evidence.

But Georgia law requires death row inmates to prove beyond a reasonable doubt they are mentally disabled to avoid execution, and the court said Hill failed to do that.

Chicago lawyer and law professor Andrea Lyon posts, "Undue Burden," at Huffington Post.  Here's the beginning:

Monday, July 23 2012, Warren Hill is scheduled to be executed in Georgia. He was convicted of killing another inmate while serving a life sentence for killing his girlfriend, according to the Atlanta Journal-Constitution. This is despite the fact that Warren Hill is mentally retarded. Georgia was one of the first states to ban the execution of the mentally retarded; but there is a catch. The defendant bears the burden of proving he is mentally retarded beyond a reasonable doubt. This is the only state that requires the defense to bear this burden. Only the Board of Pardons and Parole can stop his execution now.

While a judge has found that Mr. Hill is mentally retarded, with an IQ of only 70, he didn't find that fact beyond a reasonable doubt but rather by a preponderance of the evidence, which is the ordinary standard in civil matters, more likely than not. And it is on this technical basis that he will be executed. The Georgia Supreme Court voted four to three to reinstate Hill's death sentence, and at the end of last year, the U.S. Court of Appeals in Atlanta ruled seven to four to uphold that death sentence even though the majority seemed to think it "unwise."

In Atkins v. Virginia the United States Supreme Court held that it was unconstitutional to execute the mentally retarded, however the United States Supreme Court left it up to the states, both substantively and procedurally, to define and remove the mentally retarded from the pool of death-eligible capital defendants. In other words, the procedures and standards are details left to the states. No other state requires the defendant to bear this burden, either to prove mental retardation or anything else, just Georgia. History teaches us that these procedures and policies do not always remove the mentally retarded from the pool of those subject to execution, and this has proven to be the case here.

Earlier coverage of Warren Hill's case begins at the link.

More Coverage From Georgia

"Ga. switching to single-drug method for executions," is Kate Brumback's updated AP report, via Huffington Post.

The Georgia Department of Corrections said it will begin using a single dose of the sedative pentobarbital to carry out court-ordered death sentences. It had been using pentobarbital to sedate inmates before injecting pancuronium bromide to paralyze them and then potassium chloride to stop their hearts.

Georgia inmate Warren Lee Hill had been set to be executed Wednesday evening, but authorities said that execution has now been rescheduled for Monday.

Hill's attorney, Brian Kammer, expressed concern about the switch to a single-drug procedure even as he waged legal efforts to spare the inmate. "I think it is troubling to be confronted with a significant change in the execution protocol a day before the scheduled execution of my client," Kammer said in an email.

And:

Georgia's corrections department had been researching a switch for about a year, spokeswoman Gwendolyn Hogan said Tuesday. She added that Corrections Commissioner Brian Owens ordered the change after his staff spoke with corrections officials around the country about their execution procedures and reviewed court opinions and the testimony of medical experts.

Georgia began using pentobarbital as part of its three-drug combination last year after another drug, sodium thiopental, became unavailable when its European supplier bowed to pressure from death penalty opponents and stopped making it. But pentobarbital is now in short supply after its manufacturer said it would try to prevent its use in executions.

Three other states – Arizona, Idaho and Ohio – have carried out single-drug executions using pentobarbital, according to the Death Penalty Information Center. Ohio was the first to use just pentobarbital, during a March 2011 execution. Washington state has used the method with sodium thiopental, the center said. A total of 11 executions have been carried out using pentobarbital alone, said center executive director Richard Dieter.

Texas, the nation's most active death penalty state, last week announced that it would change to a single-drug method using pentobarbital. Its first execution using that method is set for Wednesday.

Missouri has said it plans to use propofol, the anesthetic blamed for Michael Jackson's death, for single-drug executions.

"Georgia delays execution amid drug protocol change," by David Beasley for Reuters.

Warren Lee Hill, 52, was set to be executed on Wednesday for beating another inmate to death in 1990 while serving a life sentence for fatally shooting his girlfriend.

The state Department of Corrections said the execution would be delayed until Monday as Georgia switches from a three-drug cocktail that included the sedative pentobarbital to pentobarbital alone.

"The Department has been using pentobarbital in its execution process, and based upon the experience of other states and competent medical testimony, the drug has proven to be effective," corrections officials said in a statement.

Officials did not say what prompted the change. Pentobarbital is sometimes used to euthanize animals.

Earlier coverage of Warren Hill's case begins at the link.

UN Speaks Out on Hearn & Hill Cases

"UN expert urges US authorities to stop execution of two persons with disabilities," is the news release from the UN News Centre.  Here's the complete text.

An independent United Nations human rights expert has urged United States authorities to stop the execution of two people with psychosocial disabilities who are scheduled to be put to death tomorrow in the states of Georgia and Texas.

“It is a violation of death penalty safeguards to impose capital punishment on individuals suffering from psychosocial disabilities,” said the UN Special Rapporteur on arbitrary executions, Christof Heyns.

“It is also contrary to the United States Supreme Court ruling Atkins v Virginia, which held that such executions are unconstitutional,” added the expert, who reports in an independent and unpaid capacity to the UN Human Rights Council in Geneva.

Warren Hill and Yokamon Laneal Hearn were convicted of murder in separate incidents, and the convictions have been the subject of a number of legal appeals based on the defendants’ mental health, according to a news release issued by the Office of the UN High Commissioner for Human Rights (OHCHR).

However, their death sentences were upheld despite claims that the defendants had psychosocial disabilities, and the existence of a federal ban on such executions. On Monday, the Georgia Board of Pardons and Paroles rejected clemency for Mr. Hill.

Mr. Heyns called on the state authorities “to demonstrate the moral and legal leadership expected of the strong democracy that the United States is by commuting the death sentences of Hill and Hearn, and show the importance it gives to the fundamental right to life.”

In relation to Mr. Hill’s case, the Special Rapporteur voiced particular concern that Georgia is now the only US state that requires proof of what it calls ‘mental retardation beyond a reasonable doubt,’ rather than a preponderance of the evidence as in other jurisdictions, although Georgia was the first state in the US to recognize that such defendants should not be executed.

“This higher standard of proof, making it very difficult to demonstrate that one actually suffers from a psychosocial disability may, I fear, mean that Mr. Hill, scheduled for execution tomorrow, would be a fatality in violation of international as well as domestic law,” Mr. Heyns said.

Regarding Mr. Hearn’s scheduled execution in Texas, the expert noted that “there is evidence to suggest that he also suffers from psychosocial disabilities. This includes an expert opinion that he is affected by structural brain dysfunction likely to have been caused by his mother’s alcohol abuse during pregnancy.”

According to the OHCHR news release, information received by the expert raises issues of a lack of a proper investigation, including mitigating factors, arbitrariness and non-compliance with fair trial safeguards that potentially constitute violations of international standards applicable to the death penalty.

"U.N. expert: Ga., Texas executions illegal," is the UPI report.

A U.N. rights specialist appealed to Georgia and Texas not to execute two men, arguing they're mentally disabled and killing them would be unconstitutional.

"It is a violation of death penalty safeguards to impose capital punishment on individuals suffering from psychosocial disabilities," said Christof Heyns, U.N. special rapporteur on extrajudicial, summary or arbitrary executions.

"It is also contrary to the United States Supreme Court ruling Atkins vs. Virginia, which held that such executions are unconstitutional," he said.

A rapporteur is a person responsible for compiling reports and presenting them to a governing body.

The Supreme Court ruled 6-3 June 30, 2002, that executing mentally retarded individuals violates the Eighth Amendment's ban on cruel and unusual punishment.

Warren Hill was convicted of murder in Georgia and Yokamon Hearn was convicted of murder in Texas.

Their convictions have been the subject of a number of legal appeals based on the defendants' mental health.

Reuters posts, "U.N. expert says U.S. executions, due Wednesday, unconstitutional," by Stephanie Nebehay.

A United Nations human rights investigator called on the U.S. states of Georgia and Texas to halt the execution of two men, scheduled for Wednesday, saying that the prisoners were mentally disabled and killing them would breach the U.S. constitution.

Christof Heyns, U.N. special rapporteur on extrajudicial, summary or arbitrary executions, said that it was a "violation of death penalty safeguards" to execute someone suffering from "psychosocial disabilities" and said their death sentences should be commuted.

"It is also contrary to the U.S. Supreme Court ruling Atkins v. Virginia which held that such executions are unconstitutional," Heyns said in a statement, referring to a 2002 ruling that bans executing mentally retarded defendants.

Warren Hill and Yokamon Laneal Hearn were found guilty of murder in Georgia and Texas, respectively, and their convictions have been the subject of a number of legal appeals based on the defendants' mental health, he said.

Earlier coverage of the Yokamon Hearn and Warren Hill cases at the links; related posts in the international category index.