Texas to execute mentally retarded man; state claims man isn’t mentally retarded

August 6, 2012

Texas Death PenaltyWhen does a mentally retarded person stop being mentally retarded?

When a state decides that he needs to be executed.

In this circumstance, the state is Texas, and the person is Marvin Wilson.

In 1998, a jury convicted and capitally sentenced Wilson for a 1992 murder, which allegedly occurred after a fight at a gas station.

Wilson is scheduled to be executed tomorrow after 6:00 p.m. central time.

But why is the “mentally retarded” distinction significant?

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.

Case in point: the aforementioned Marvin Wilson.

Wilson was evaluated by a court-appointed doctor: Dr. Donald Trahan, a board-certified neuropsychologist with 22 years of clinical experience as a mental retardation specialist.

Dr. Trahan medically diagnosed Wilson as having mild mental retardation (click here for the full report, which includes a detailed analysis of Wilson’s mental capacities).

In spite of this diagnosis, the court applied the Briseño factors to find that Wilson wasn’t, in fact, mentally retarded.

But the Atkins opinion did say that the states can make their own definitions of “mentally retarded,” so Briseño isn’t really in disagreement with Supreme Court precedent, right?

Not quite.

The sentence in the Atkins opinion relied upon by the Briseño court had a footnote.

This footnote illustrates that the Supreme Court was willing to defer to the states to define mental retardation because the existing statutory definitions “generally conform[ed] to the clinical definitions set forth” by the AAIDD.

In other words, the Court was willing to defer to the states on the understanding that any state definition of “mental retardation” was going to conform to the commonly accepted clinical definitions.

As discussed above, the Briseño factors take no scientific evidence into consideration, and, as such, the case itself is clearly not in line with Supreme Court precedent.

And, by extension, neither is Wilson’s capital sentence.

Wilson petitioned for certiorari on July 19, 2012, so we’ll know whether the Supreme Court agrees by 6:00 p.m. tomorrow evening.

UPDATE (06:30 p.m. CDT – 08/07/2012): The U.S. Supreme Court has denied Marvin Wilson’s stay of execution

UPDATE (07:02 p.m. CDT –  08/07/2012): Marvin Wilson was pronounced dead at 6:27 p.m., 14 minutes after his lethal injection began.