How the State of Texas blew off a Supreme Court decision so it could execute a mentally retarded man.

The Walls Unit at Huntsville Prison, where Marvin Wilson was executed. (Reuters)

At 6:26 p.m local time last night, an hour or so after the last appeal was denied, Texas executed a mentally retarded black man named Marvin Wilson, a man who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes, a 54-year-old man with an IQ of 61* which, his attorneys were quick to point out, is "below the first percentile of human intelligence."

MORE BY ANDREW COHEN

Texas accomplished this unrepentant bit of business despite a 2002 decision of the United States Supreme Court styled Atkins v. Virginia, a ruling which many of us at the time believed meant the end of executions for men, like Wilson, whose simple minds could not fathom the concept of the act. Boy, were we wrong. Today, Atkins seems as dead as Wilson, another example of the misdirection today's justices have perfected, another episode where the practical remedy doesn't remotely match the heralded right.

Without dissent or comment, the Supreme Court just rejected a last-minute appeal by Wilson's lawyers on Tuesday, as if it were somehow clear, to anyone in the world, why the precedent created by the Atkins case wasn't somehow relevant to the Wilson case. After all, wasn't the defendant in the Atkins case, Daryl Renard Atkins, a man with an IQ of 59, just two points above Wilson? And, in Atkins, didn't Justice John Paul Stevens write this for 6-3 majority?:

Construing and applying the Eighth Amendment in the light of our "evolving standards of decency," we therefore conclude that such punishment is excessive and that the Constitution "places a substantive restriction on the State's power to take the life" of a mentally retarded offender.

One of the members of the Court's majority in Atkins was Justice Sandra Day O'Connor. She's long gone, replaced by the arch-conservative Samuel Alito. Another in the majority in Atkins was Justice Anthony Kennedy. Three years later, It was Justice Kennedy who authored Roper v. Simmons, a 2005 case which outlawed the execution of juvenile offenders. In the intervening seven years, and even last term, Justice Kennedy has consistently sought to narrow the scope of sentencing. Yet Tuesday he was silent.

Can you explain that? I cannot. How can it be possible that the Eighth Amendment prohibits the execution of a mentally retarded man with a IQ of 59 but not a mentally retarded man with a IQ of 61? Alas, here we must turn to the other part of Atkins, what the execution of Wilson informs us now is the most important part of Atkins, the part that immediately undermined the scope of the remedy granted in the case. After all, in Atkins, didn't Justices Stevens, O'Connor, and Kennedy all sign on to this language?:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.

It was the last sentence which spelled doom last night for Marvin Wilson. Since 2002,  those words have allowed states like Texas, and Georgia, to nurture and protect statutes and case law that directly contradict the spirit, if not the letter, of Atkins. For example, Georgia relies upon a statute which makes the mentally retarded inmate prove beyond a reasonable doubt that he warrants protection under Atkins, a burden no jury ever gets to weigh. Instead, prison doctors and state judges, the same folks who steered pre-Atkins law, get to decide when a condemned man has proven enough retardation to be spared.

And Texas? Less than two years after Atkins, Texas ginned up a legal standard known today as the "Briseno factors," adopted from a 2004 case styled Ex Parte Briseno. In that case, the Texas Court of Criminal Appeals, acknowledging that it was making new law, set forth these decidedly non-scientific factors for determining whether a condemned man's mental retardation was sufficient enough to warrant protection under Atkins:

Evidentiary factors that may be considered when making Atkins determination whether defendant is mentally retarded and therefore cannot be executed include: (1) whether those who knew defendant best during developmental stage, i.e., his family, friends, teachers, employers, and authorities, think he was mentally retarded at that time, and if so, whether they act in accordance with that determination; (2) whether defendant has formulated plans and carried them through, or whether his conduct is impulsive; (3) whether defendant's conduct shows leadership or shows he is led by others; (4) whether defendant's conduct in response to external stimuli is rational and appropriate, regardless of whether it is socially acceptable; (5) whether defendant responds coherently, rationally, and on point to oral or written questions, or whether his responses wander from subject to subject; (6) whether defendant can hide facts or lie effectively in his own or others' interests; and (7) putting aside any heinousness or gruesomeness surrounding the capital offense, whether commission of the offense required forethought, planning, and complex execution of purpose.

This was what Justice Stevens had meant in Atkins when he wrote about leaving "to the states" the means of enforcing the constitutional restriction against the execution of the mentally retarded. But then Texas went even further. Instead of enforcing the restriction of Atkins, the Texas courts wrote their way around the restriction. Even though Atkins himself had a "mild" case of mental retardation and was spared by the justices, Texas made it clear that there would be no such relief for other borderline cases:

[M]ost Texas citizens would agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution, But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?

Put another way, is there a national or Texas consensus that all of those persons whom the mental health profession might diagnose as meeting the criteria for mental retardation are automatically less morally culpable than those who just barely miss meeting those criteria? Is there, and should there be, a "mental retardation" bright-line exemption from our state's maximum statutory punishment?

As a court dealing with individual cases and litigants, we decline to answer that normative question without significantly greater assistance from the citizenry acting through its Legislature.

Got all that? In those sentences, Texas blew off Atkins. Six justices in Washington may have said that the Eighth Amendment protects even the mildly mentally retarded from execution. But Texas still wasn't ready or willing to grant such relief. Instead, the state charted its own path in Brisenos, and then dared the Supreme Court to come back around and render yet another ruling on the constitutionality of executing the mentally retarded. On Tuesday, Texas was rewarded for this defiant behavior.

It's little wonder then why John Steinbeck's son, Thomas, was so disgusted Tuesday at the thought of having his father's work associated with a legal standard that could send a man like Wilson to the gurney and a needle in the wake of Atkins. "Prior to reading about Mr. Wilson's case," he wrote:

I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e. Lennie Small, from Of Mice and Men as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer... His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic.

He is not alone. Either the Eighth Amendment means something or it doesn't. Either the mandate of Atkins means something or it doesn't. If these principles and precedents don't mean anything, if a state like Texas can execute a mentally retarded man simply by labeling him as "mildly retarded," then the Supreme Court ought to have the guts to say so by overturning Atkins. And yet if Atkins is still good law Wilson should still be alive, serving a life sentence without the possibility of parole. There is no in-between here.

Wilson's mental retardation was undisputed. The only expert to ever examine him was a court-appointed doctor. The fact that Texas was able to overcome this -- was able to execute him without ever having to dispute the findings of that expert -- shows how empty is the promise of Atkins. A mentally retarded black man in Texas: What chance did Wilson ever have? Evidently, none. What Texas did to Wilson last night -- what the Supreme Court allowed it to do to Wilson -- is beneath the dignity of the rule of law.


*Anticipating some responses, there were only two full-scale IQ tests ever conducted upon Wilson. One, when he was 13 years old in 1971, yielded a score of 73. The other, conducted while Wilson was in prison in 2004, yielded a score of 61. In some states, a score of 70 is considered evidence of mental retardation. In other states, the score may be up to 75. The IQ is significant as a contrast with Atkins. But it was the complete diagnosis, by the court-ordered expert, which confirmed Wilson's retardation.