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 kidding. 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 ….”
The Eighth Amendment’s bar on “cruel and unusual punishments,” Justice John Paul Stevens wrote for the Atkins Court is not based on “standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail.” In 2002, Stevens and the other justices in the majority noted that in the late 1980s states and the federal government began enacting measures that specifically barred the use of the death penalty for the mentally disabled.
Stevens concluded, in part, that the vast number of states taking a stand against the execution of mentally disabled persons “provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.”
Nonetheless America is still a society where large swaths of the populace applaud torture of military detainees and the killing of inmates, regardless the crime committed, the evidence used to convict them, or their mental state. Gov. Perry, during his brief presidential run, staunchly defended his state’s number of executions during a Republican primary debate. And he received rounds of applause from the audience.
Until the high court intervenes and corrects the way Texas applies the death penalty to mentally disabled people, the decency of the Atkins case will continued to be flaunted. And more chillingly, stories similar to Wilson’s will mount. And in Texas many seem already numb to the matter.
[image via Gage Skidmore]