Danielle Citron wrote about this yesterday over at co-op and Frank Pasquali wrote about it at balkinization. Professor Lee Kovarsky of the University of Maryland has more details on the troubling facts surrounding the impending executation of Marvin Wilson.
Since the Supreme Court lifted the effective moratorium on the death penalty in 1976, Texas has executed more than four times as many people as any other state. On yet another issue, Texas is poised to break new ground in capital sentencing: it is defining the category of offenders with mild mental retardation (MR)—offenders that are supposed to be exempt from execution under the Eighth Amendment—out of existence. Marvin Wilson is scheduled for lethal injection in one week, despite the fact that he 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 mild MR. His adaptive functioning actually registers at a level consistent with a more severe variant of MR.
In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Court observed that people with MR are less culpable for their crimes and that they are not equipped to defend themselves at the guilt or punishment phases of their capital trials. In defining MR, the Supreme Court relied on the clinical criteria set forth by the leading clinical authorities. Indeed, all variants of clinical MR definitions have shared roughly the same criteria for nearly 100 years.
Under that framework, Mr. Wilson was evaluated by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. After meeting with Mr. Wilson for eight hours, reviewing his school and medical records, and administering or evaluating a battery of leading neuropsychological testing, Dr. Trahan concluded that Mr. Wilson clearly had mild MR. At Mr. Wilson’s MR hearing, the State presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis.
Although the Supreme Court barred states from executing offenders with MR, Texas courts have created their own test for the condition— the so-called “Briseño factors” (named after the case that announced them). The Briseño factors are not recognized by clinicians or medical professionals, but Texas uses them to determine which defendants with MR will actually receive the Eighth Amendment exemption that Atkins announced. Texas courts developed the factors because, unlike in most other death-penalty jurisdictions, the Texas legislature has not bothered to define the condition statutorily. The factors constitute wildly under-inclusive criteria for MR. 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.” 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. On two separate occasions, the state court observed that Mr. Wilson could not have MR because, among other things, he had a wife and a child.
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 Atkins. Without judicial or gubernatorial intervention, Texas courts will have successfully hollowed Atkins into a rule that protects virtually no offender capable of going to trial.