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.
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