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.
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