54-year-old Marvin Wilson is scheduled to die by lethal injection on Tuesday in Texas, even though extensive testing by a neuropsychologist has found that he reads and writes at the level of a 7-year-old and has an IQ of 61. He failed the seventh grade, was socially promoted through the eighth and ninth grades and dropped out of school in the tenth; he reportedly sucked his thumb into adulthood and was unable to operate toys such as tops and marbles, writes Danielle Citron on Concurring Opinions. A Beaumont, Texas, jury sentenced Wilson to death in 1998 for the 1992 murder of Jerry Williams after an alleged fight at a gas station.
The Supreme Court banned the execution of those with intellectual disabilities or mental retardation (the latter term is still used in the US) in 2002. States must follow the court’s ruling, though some discretion was left to states to administer the injunction.
The Lone Star State Uses Its Own Criteria For Assessing Intellectual Disability
Texas has interpreted this to mean that it can set its own at criteria for determining if an inmate has intellctual disabilities. But rather than rely on scientific, clinical standards approved by, for instance, the American Association on Intellectual and Developmental Disabilities (AAIDD), Texas uses seven criteria called “Briseño factors” that it devised on its own and that are not used by any other state. The AAIDD refers to them as an “impressionistic ‘test’ [that] directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.”
Named for the decision which produced them, the Briseño factors are not based on scientific methodology as are tests that were administered to Wilson, such as the Raven Standard Progressive Matrices and the Peabody Individual Achievement Test-Revised. Notes the Guardian:
“Most Texas citizens,” the argument ran, “might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt” from execution. By implication anyone less impaired than Steinbeck’s fictional migrant ranch worker should have no constitutional protection.
Citron writes, and I wholeheartedly agree, that “although literature can tell us much about society and law… It should not replace or disregard well-accepted scientific measures of evaluation.” Texas requested neither evidence nor testimony in its assessment of Wilson’s cognitive ability using the Briseño factors.
Marvin Wilson Will Be Executed on Tuesday
On Monday, Wilson’s lawyer, Lee Kovarsky, is petitioning the Supreme Court for a stay of execution for more time to examine Texas’ “unique” methods of assessing intellectual disability in inmates.
Along with the case of Warren Hill, whose execution was called off barely 90 minutes before it was to occur last month, that of Marvin Wilson shows that the Supreme Court has a growing problem on its hands as states act in “open defiance of the will of the highest judicial panel in the land in relation to the execution of people with learning difficulties.”
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