Courtesy: Texas Department of Criminal Justice

Updated Tuesday, August 7, 7:42 pm

If 54-year-old Marvin Wilson is put to death on Tuesday, it will not be because Texas denies that he is intellectually disabled, or as the legal literature puts it, “mentally retarded.” This much, the state recognizes. It just does not believe that Wilson is disabled enough not to be executed in Texas—a flagrant violation of the 2002 Supreme Court ruling in Atkins v. Virginia, which held that “the mentally retarded should be categorically excluded from execution,” period.

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.”

Indeed, a list compiled by the Death Penalty Information Center shows forty-four such prisoners executed before Atkins, noting that some claiming intellectual disability have been killed since then. Others, like Johnny Paul Penry—a man with an IQ of 56 who did not know how many hours there were in a day, still believed in Santa Claus and came within days of execution in 2000—are now imprisoned for life. (The DPIC lists twelve more Texas prisoners whose sentences were reduced after Atkins.) Just last month, Georgia death row inmate Warren Hill came close to execution despite also being diagnosed as mentally retarded. (He lived to see another day because of unrelated concerns, over the state’s lethal injection protocol.) Weeks before that, Ohio Governor John Kasich granted clemency to John Eley, in part due to concerns expressed by the former prosecutor in his case over his “low intellectual functioning.”

Wilson was convicted for the 1992 kidnapping and killing of a police informant named Jerry Williams, who had accused him of dealing cocaine. According to court filings, “eyewitnesses saw two men—Mr. Wilson and his accomplice, Andrew Lewis—attack Mr. Williams at Mike’s Grocery store in Beaumont, Texas.”

From there it gets murkey.

The eyewitness testimony as to the primary assailant was inconsistent…. The eyewitnesses saw the assailants force Mr. Williams into a car, and one witness testified that, shortly thereafter, she heard what were either gunshots or noises from a nearby refinery. The forensic expert testified that attributes of the body strongly indicated that Mr. Williams was not killed immediately after the incident at Mike’s Grocery, but shortly before he was discovered at 7:00 a.m. the next morning…. In light of evidence discovered on June 18 of last month, there have been and will be proceedings seeking to establish that Mr. Williams was entrapped in the early hours of November 10, that Mr. Wilson was not the shooter, and that he did not otherwise have a significant role in the murder that he did not know was about to take place. The evidence that Mr. Wilson was the principal perpetrator came from testimony of Terry Lewis, the wife of Mr. Wilson’s accomplice. Ms. Lewis testified that, when she became concerned that her husband pulled the trigger, Mr. Wilson calmed her by assuring her that Mr. Lewis was not the primary assailant.

“In short,” his lawyers argue, Wilson was sentenced to die “under precisely the circumstances that make the capital punishment of offenders with MR problematic: he was one of multiple perpetrators, the eyewitness identification of the primary assailant shifted over time, the more-sophisticated accomplice fingered Mr. Wilson as the leader and evidence of Mr. Wilson’s ‘confession’ came from the accomplice’s wife.”

Putting aside the (rather salient) question of whether Wilson actually committed the murder, there are compelling reasons for the US Supreme Court to intervene. As Kovarksy points out, the Court has been “showing a renewed interest in questions of personal culpability,” a trend most recently on display in its ruling in Miller v. Alabama, which limited life without parole for juvenile offenders. What’s more, he says, the Court is currently considering another case out of Texas, which grapples with the state’s similar attempts to circumvent its ruling in Atkins. In that case, attorneys for death row prisoner Elroy Chester argue that while Atkins “permitted states to adopt their own procedures for determining whether someone suffers mental retardation, this deference to the states did not authorize Texas to adopt a standard that permits the execution of mentally retarded offenders.” Yet that’s precisely what has happened. While most death penalty states have passed legislation to define what qualifies as intellectual disability, based on similar clinical standards as the Atkins court, 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.” As an example, the Briseño court cited the fictitious character of Lennie Small, the mentally impaired migrant worker from John Steinbeck’s novel, Of Mice and Men. (“Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt” from execution, the court concluded.) These measures are rooted in ignorance: notions that intellectually disabled people do not know right from wrong, cannot lie in their own self-interest, are incapable of leadership and so on. The American Association on Intellectual and Developmental Disabilities has described them as “based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.” What’s more, Kovarksy notes, they are “extraordinarily elastic”; in a different case, Hall v. Texas, Wilson’s attorneys argue, “the Briseño factors allowed the State to rely on a co-worker, a waitress who served the defendant once, the arresting detective, and prison guards who had limited contact with the defendant to controvert three defense expert opinions.”

Based on his experience teaching sports to mentally challenged individuals, the eighteen-year-old co-worker opined that defendant Hall was not mentally retarded. One prison guard claimed that he “knew some kids in school with Down’s syndrome” and therefore did not think Hall was mentally retarded. Another guard asserted that her neighbor’s daughter was mentally retarded and that in her opinion Hall was not. A third guard had an uncle who was mentally retarded and reasoned that Hall “was nothing like his uncle.”

“There’s no psychological standard-setting body that has even suggested those factors are valid,”  Kovarksy says. And as a judge on Texas’s own Court of Criminal Appeals observed in Lizcano v. Texas, “We seem to have granted a certain amorphous latitude to judges and juries in Texas to supply the normative judgment—to say, in essence, what mental retardation means in Texas…. Is the Texas fact-finder at liberty to define mental retardation differently than a consensus of Americans would define it for Eighth Amendment purposes?”

That question should have been long since resolved. As his client is prepared to be led to the death chamber, Kovarsky says, “If Texas executes Mr. Wilson, then the once-promising Eighth Amendment rule against executing offenders with MR will have been reduced to a capital exemption in name only.”

UPDATE: The Supreme Court declined to intervene. Marvin Wilson has been executed.

Lee Kovarsky released the following statement:

We are gravely disappointed and profoundly saddened that the United States Supreme Court has refused to intervene to prevent tonight’s scheduled execution of Marvin Wilson, who has an I.Q. of 61, placing him below the first percentile of human intelligence. Ten years ago, this Court categorically barred states from executing people with mental retardation. Yet, tonight Texas will end the life of a man who was diagnosed with mental retardation by a court-appointed, board certified specialist.

It is outrageous that the state of Texas continues to utilize unscientific guidelines, called the Briseño factors, to determine which citizens with intellectual disability are exempt from execution. The Briseño factors are not scientific tools, they are the decayed remainder of an uninformed stereotype that has been widely discredited by the nation’s leading groups on intellectual disability, including the American Association on Intellectual and Developmental Disabilities. That neither the courts nor state officials have stopped this execution is not only a shocking failure of a once-promising constitutional commitment, it is also a reminder that, as a society, we haven’t come quite that far in understanding how so many of those around us live with intellectual disabilities.