"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.
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