Texas Set to Execute a Man with an IQ of 61
In 2002, in Atkins v. Virginia, the Supreme Court ruled that the execution of so-called "mentally retarded" people was unconstitutional, a form of cruel and unusual punishment. Yet Texas, which executes far more people each year than any other state, is set to kill Marvin Wilson by lethal injection tomorrow unless the Court steps in. Liliana Segura at The Nation notes:
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."
The evidence against Wilson, Segura notes, is murky at best--he was convicted on eyewitness testimony that has proved shaky, the testimony of his accomplice and his accomplice's wife that he was the primary gunman in the murder of police informant Jerry Williams.
But no matter what Wilson is guilty of, the law of the land states that people with severe intellectual disabilities cannot be executed. So why is Texas getting away with this?
While most death penalty states have passed legislation to define what qualifies as intellectual disability, based on similar clinical standards as the Atkinscourt, Texas has not.
Instead, it focuses on a dubious set of invented criteria that are known as the “Briseño factors.” Named after another Texas death row case, these seven non-clinical measures are meant to show whether a given defendant displays a “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 standards? Include comparing a defendant to the character Lennie from John Steinbeck's (fictional) Of Mice and Men. Not exactly stellar scientific advice, relying on the average Texan to discern whether a man is disabled enough to not be executed.