Will Texas Execute a Man With an IQ of 61?
If 54-year-old Marvin Wilson is put to death on Tuesday, it will not be because Texas denies that he is intellectually disabled, or as the legal literature puts it, “mentally retarded.” This much, the state recognizes. It just does not believe that Wilson is disabled enough not to be executed in Texas—a flagrant violation of the 2002 Supreme Court ruling in Atkins v. Virginia, which held that “the mentally retarded should be categorically excluded from execution,” period.
Thus, barring a last-minute intervention, a man who has been diagnosed with an IQ of 61 and who sucked his thumb well into adulthood now faces the prospect of being strapped to a gurney and injected with lethal chemicals until he is pronounced dead. “It doesn’t usually get to this point when you have an Atkins claim this strong,” his lawyer, Lee Kovarsky, told me over the phone on Sunday. “This claim is really sort of the worst of the worst.”
Kovarsky grew up in Texas and has seen his share of death row injustices. Yet, clients like his are hardly exceptional. “If getting the death penalty is like getting struck by lightning,” he says, drawing on Justice Potter Stewart’s famous quote about the arbitrariness of capital punishment, “then it seems to strike offenders with MR a lot. Because their disability prevents them from effectively disputing guilt or culpability, they end up on death row for some of the least aggravated first-degree murders that are tried to verdict.”
Indeed, a list compiled by the Death Penalty Information Center shows forty-four such prisoners executed before Atkins, noting that some claiming intellectual disability have been killed since then. Others, like Johnny Paul Penry—a man with an IQ of 56 who did not know how many hours there were in a day, still believed in Santa Claus and came within days of execution in 2000—are now imprisoned for life. (The DPIC lists twelve more Texas prisoners whose sentences were reduced after Atkins.) Just last month, Georgia death row inmate Warren Hill came close to execution despite also being diagnosed as mentally retarded. (He lived to see another day because of unrelated concerns, over the state’s lethal injection protocol.) Weeks before that, Ohio Governor John Kasich granted clemency to John Eley, in part due to concerns expressed by the former prosecutor in his case over his “low intellectual functioning.”
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Just a few weeks ago, Texas executed another mentally impaired man, Yokamon Hearn, with drugs used for animal euthanasia. Warren Hill, a mentally impaired man sitting on death row in Georgia, was granted temporary reprieve by the state supreme court while they review the changes in the lethal injection that will be administered to end his life. Although the Supreme Court of the United States has declared that execution of mentally impaired persons is a violation of the eighth amendment, states are given the authority to determine how mentally impaired a person must be to be considered exempt from the death penalty. In Georgia, a person must be impaired “beyond a reasonable doubt,” which is subjective criteria that may disregard expert testimony of a psychiatric professional. In Texas, a person less mentally impaired than Lennie Small in John Steinbeck’s novel, Of Mice and Men, may be executed-a standard that also disregards expert assessments of a prisoner’s mental faculties and is based on the subjective opinion of non-experts.
Personally, I am conflicted about the death penalty. When individuals are depraved and indifferent to human life, it is natural to want them to pay the ultimate penalty. If a person harmed one of my children, I could see myself committing murder. However, the death penalty is very unevenly applied. It is disproportionately used against the poor, minorities, and the mentally ill, who often do not have the benefit of an adequate defense. It has been proven not to be a deterrent, is more costly than life imprisonment, and is often levied against people who are later found to be innocent.
An entire book could be penned (and many have been) about the injustices of the death penalty as it is used in the United States. Since 1976, the vast majority of murder cases that have resulted in execution, 77 percent, were for the murder of a white person. So “justice” is unevenly applied, depending on the race of the victim, although roughly half of all homicide victims were African American or other races. African Americans are both more likely to receive the death penalty for killing a white person, and less likely to be granted clemency than a white person on death row. Prosecutors are more likely to seek the death penalty in a case where the defendant is a minority than if the defendant is white. Nearly all death row inmates of any race had a public defender. I have personally witnessed the handiwork of a public defender, and the results were abysmal for the defendant.
It is my opinion that executions should NEVER take place against a mentally impaired person or in cases that have any doubt WHATSOEVER on the guilt of the individual. Cases based solely on jailhouse snitches or by accomplices in return for leniency should never result in the death penalty, because the testimony is tainted from the outset. It is demonstrably and undeniably true that minorities and poor defendants suffer from a lack of competent defense. A rich person with benefit of an army of lawyers is no less guilty and it is a travesty of justice for the families of the victims if a murderer receives a lesser sentence just because of financial resources. The Unites States stands in the company of countries such as China, Saudi Arabia, Iran, and Iraq, with the distinction of having the fifth most executions in the world for 2011. At present, 17 states have abolished the death penalty. A majority of Americans now oppose the death penalty as it is currently applied.
Amnesty International provides more facts and statistics on the issue of capital punishment.