by Jeremy Leaming
In summer 2002, the U.S. Supreme Court ruled that it is unconstitutional for states to execute mentally disabled people. But its opinion in Atkins v. Virginia has failed to take hold in Texas, a state that as University of Colorado law school professor Paul Campos puts it “likes killing people, and it’s not terribly particular about whom it kills.”
Campos is not ki
dding. The state under its current governor, Rick Perry (pictured), leads the way in killing people, far outpacing other death penalty states. And as Campos highlights the state has found a way to circumvent Supreme Court precedent and not only kill mentally disabled inmates, but people “represented by frighteningly incompetent lawyers, and almost certainly innocent.”
Recently the Supreme Court declined to intervene and stop Texas from executing Yokamon Hearn, who suffered from brain damage and was poorly represented at trial. The Texas Defender Service had fought to stop the execution of the mentally disabled Hearn.
The state is on the verge of executing yet another mentally disabled man, Marvin Wilson. Wilson’s attorney Lee Kovarsky, an assistant professor of law at the University of Maryland, has urged the Supreme Court to intervene to stop the execution set for Aug. 7. Wilson was convicted of allegedly killing a drug informant, but Kovarsky’s petition for a writ of certiorari casts serious doubt on that.
Citing Atkins, Wilson’s attorney notes that Donald Trahan, a neuropsychologist appointed by the court to examine Wilson, diagnosed him as suffering “mental retardation.” Wilson, Kovarsky continues, “received a 61 on the Wechsler Adult Intelligence Scale …, recognized as the gold standard of intellectual assessment. The evaluation places Wilson well below the “first percentile of human intelligence.”
As Campos noted Wilson has the “mental development of the average first-grader.” But, Campos continued, the “most shocking aspect of this case is that the state of Texas has never even bothered to present any evidence contesting” Wilson’s diagnosis.
Instead Texas has been able, thanks to the ultraconservative U.S. Court of Appeals for the Fifth Circuit, to apply its own standards in determining whether a death row inmate is mentally disabled. Texas’ factors for determining whether a person is mentally disabled are not recognized by the American Association on Intellectual and Development Disabilities. Kovarsky writes that the factors Texas employs to determine mental illness “lack any scientific foundation, violate the basic diagnostic principle that adaptive strengths and limitations coexist ….”
cleared the way for federal courts to review some post-conviction habeas reviews raising ineffective counsel claims.