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A death row prisoner who has been medically diagnosed as “mentally retarded” and therefore exempt from execution is set to die on Tuesday in Texas, a state that rejects scientific consensus and instead applies its own definition of learning difficulties based on a character in a John Steinbeck novel.
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.
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.
“If Wilson is executed on Tuesday, Texas will be rendering the US supreme court’s Eighth Amendment prohibition on the execution of mentally retarded prisoners a prohibition in name only,” said Lee Kovarsky, Wilson’s lawyer.
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Personal Communication on behalf of Marvin Wilson’s Attorneys:
On August 7, Texas plans to execute Marvin Wilson, a man who received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mental retardation. His adaptive functioning registers at an even lower percentile. In 1998, a Beaumont jury convicted and capitally sentenced Mr. Wilson for the 1992 murder of Jerry Williams, which allegedly occurred after a fight at a gas station.
Despite enrolling in special education classes throughout his childhood, Marvin failed the 7th grade. He received mostly Ds and Fs when he repeated it, as well as when he was socially promoted to 8th and 9th grades. He dropped out of school for good in the 10th grade. Friends and family swore affidavits stating that, as a child, he frequently clamped his belt so tightly that he cut off blood circulation, that he couldn’t use simple toys such as tops and marbles, and that he sucked his thumb into adulthood. According to the mental retardation expert who assessed him, Marvin continues to be unable to perform even the simplest tasks without assistance.
As you likely know, in 2002, the Supreme Court categorically barred states from executing offenders with mental retardation. The Court observed that people with mental retardation 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 mental retardation, the Supreme Court relied on the clinical 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).
Texas has executed more than four times as many people as any other state in the modern era. It is now poised to carry out the particularly egregious execution of Marvin Wilson, one that underscores the jurisdiction’s ongoing status as this country’s most extreme outlier on all issues pertaining to capital sentencing. Mr. 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. At Mr. Wilson’s hearing to determine whether he had mental retardation, the state presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis. In the absence of judicial or executive intervention, Mr. Wilson will be put to death next week, despite his condition.
Utilizing the AAMR/AAIDD’s clinical criteria for mental retardation, Dr. Trahan met with Mr. Wilson for eight hours, reviewed his school and medical records, and administered or evaluated a battery of leading neuropsychological testing. He examined Mr. Wilson’s memory, language development, adaptive skills, conceptual reasoning, practical skills and other scientifically-recognized indicia of mental functioning. Taking into account all of that data, Dr. Trahan concluded that Mr. Wilson clearly had mild mental retardation.
Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with mental retardation 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 mental retardation are protected from execution. 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.
I am writing today to ask you to consider covering Mr. Wilson’s case. His story is a case study on how the Texas criminal justice system fails offenders with mental retardation. Notwithstanding his diminished moral culpability and limited capacity to defend himself in a capital proceeding, Mr. Wilson might be lethally injected because he fails Texas’ non-clinical test for mental retardation, despite the U.S. Supreme Court’s categorical prohibition on punishing people with his condition.
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.”
Attorneys for Mr. Wilson have filed a petition for a writ of certiorari with the U.S. Supreme Court, asking it to consider whether the Briseño factors represent an unreasonable application of the Supreme Court’s categorical Eighth Amendment rule against executing offenders with mental retardation. The certiorari petition is attached, as are Dr. Trahan’s neuropsychology report and addendum.
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