Courtesy: Texas Department of Criminal Justice
Updated Tuesday, August 7, 7:42 pm
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.”