According to his most recent test, Marvin Wilson has an IQ of 61 (most states bar executions for those with IQs at 70 or below). That puts him below the first percentile of human intelligence, and he’s in an even lower percentile for adaptive functioning. Despite the US Supreme Court’s ten-year old ban on executing the “mentally retarded” (Atkins v. Virginia), Marvin Wilson faces execution in Texas on August 7.
In Georgia, the case of Warren Hill recently exposed that state’s uniquely strict requirement that “mental retardation” be proven “beyond a reasonable doubt” before an execution can be declared unconstitutional.
Texas uses a more reasonable “preponderance of the evidence” standard of proof. But the Lone Star State has found another way to keep killing the intellectually disabled.
The state’s highest court, the Texas Court of Criminal Appeals (TCCA), decided that the US Supreme Court’s ban doesn’t apply to all persons with “mental retardation”, just to 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 US Supreme Court, of course, made no such distinctions, writing plainly in its Atkins decision: “Executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment.”
To determine whether its “level and degree of mental retardation” has been reached, the TCCA developed a set of seven questions that the court itself suggested were inspired by Lennie Small, the mentally impaired ranch hand in John Steinbeck’s Of Mice and Men.
Lennie is a fictional character from a book written 75 years ago.
The American Association of Intellectual and Development Disabilities (AAIDD) has written that these 7 questions “…are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.” The AAIDD (known then as AAMR), was the main scientific authority noted by the US Supreme Court in Atkins.
Nonetheless, Marvin Wilson was evaluated by the TCCA’s dubious criteria, and found to be eligible for execution. So it seems that by interpreting a US Supreme Court ruling with 1930s literature instead of 21st century science, Texas has effectively exempted some prisoners with “mental retardation” from the protections ordered by our nation’s highest court.
And unless the US Supreme Court or someone intervenes, Texas will execute Marvin Wilson on August 7.