Of Mice And Men: The Execution of Marvin Wilson

Transcription

1 Of Mice And Men: The Execution of Marvin Wilson The Atlantic News, AUG 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 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-yearold man with an IQ of 61* which, his attorneys were quick to point out, is "below the first percentile of human intelligence." 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?:

2 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 nonscientific 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?

3 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 courtappointed 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.

4 Steinbeck s Family: Texas Wrong In Using Of Mice And Men To Justify Marvin Wilson s Execution BY Joseph Orovic August He is one of Steinbeck's simplest characters, eliciting sympathy as few in the American literary oeuvre ever do. And perhaps it's this empathy that keeps "Of Mice and Men" on the syllabi of so many high school English courses, 75 years after its publication. Now the character has been brought to the fore again, providing the baseline comparison that may send a mentally retarded convict named Marvin Wilson to his death Tuesday night. Lennie Small was never meant to set the legal definition of "mental retardation," the late novelist's son, Thomas Steinbeck, argues, and his father's fictional character has no place setting legal precedents in the real world of criminal justice and capital punishment. The state of Texas disagrees. A snafu in a previous Supreme Court ruling will allow Wilson to be sent to his death, if his lawyers' petition for a stay of execution is ignored. And the whole ordeal bizarrely hinges upon Lennie Small, and what Steinbeck argues is a misguided and inaccurate interpretation of a fictional character in his father's seminal work. "Prior to reading about Mr. Wilson's case, 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," Thomas Steinbeck said in a statement. Wilson's attorneys asked the high court to put a stay of execution until Texas' controversial means of testing mental disabilities is properly challenged. Wilson, now 54, was convicted in 1992 of murdering a police drug informant. During his stint in prison, he was subjected to a battery of tests to determine the borders of his mental limitations, including a 2004 report by Donald Trahan, a neuropsychologist from the Center for Behavioral Studies in Texas. Wilson's IQ of 61 puts him far below normal, with the literacy level of a 7-year-old. He cannot dress himself properly, match his socks, climb a ladder or mow a lawn. "It is evident that the deficiencies in general intelligence and adaptive behavior have been present since early childhood and well before the age of 18," Trahan wrote. "My evaluation of Mr. Marvin Lee Wilson reveals that he does meet the criteria for a diagnosis of mild mental retardation." The test results came two years after the Supreme Court ruled the execution of mentally retarded convicts was a breach of the Constitution's Eighth Amendment ban on excessive punishment in Atkins v. Virginia. "The mentally retarded should be categorically excluded from execution," the court wrote in its decision, due to "their disabilities in areas of reasoning, judgment and control of their impulses." The decision did not specify a definition for mental retardation, allowing states to set their own guidelines. Texas, a state so execution-happy it accounts for one-third of the nation's trips to death row, took a back door to letting the mentally retarded continue to face the death penalty. The Texas Court of Criminal Appeals set a threshold that ignores recognized medical testing while daring the Supreme Court to intervene. It directly rebuked the Atkins decision in a 2004 ruling, decrying the Supreme Court's "categorical rule making such offenders ineligible for the death penalty," going so far as to deny the existence of "a 'mental retardation' bright-line exemption." Instead, it concocted seven criteria called "Briseno factors," which were based upon the character Lennie Small.

5 "Most Texas citizens would agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution," the decision read. "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?" In short, Texas' criteria allow the mentally retarded to remain on death row if a judge determines the crime was complex enough to require forethought, planning and intricate execution. Wilson met all the criteria. But it's the bit alluding to Lennie Small that upsets the Steinbecks. "My father was a highly gifted writer who won the Nobel Prize for his ability to create art about the depth of the human experience and condition. 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," Thomas Steinbeck said. "I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way." The same 2004 ruling Texas used against Wilson has been the foundation of at least 10 mental retardation claims being rejected in other death penalty cases. It has been echoed by the U.S. Court of Appeals for the Fifth Circuit, which claims mental retardation cases are not grounds for staying executions. Several factors could change Wilson's fate by 6 p.m. Central Time. The Supreme Court could offer a stay of execution, or a lower court could push back as well. Texas Gov. Rick Perry could also intervene -- though the prospect remains unlikely. He vetoed a bill that would have banned the execution of mentally retarded inmates in Arguably the strangest part of the ordeal remains Wilson's very real similarities to Lennie Small, particularly in the facts his crime. Like Lennie, Wilson was one half of a duo. It left him susceptible to the direction of his accomplice. The main witness against Wilson was the accomplice's wife, who testified he admitted to the crime. Steinbeck's own novel eerily describes Wilson's character -- and possibly Texas' obstinacy. A longer bit of dialogue spoken by Crooks, an ancillary character, reads, "He got nothing to tell him what's so an' what ain't so. Maybe if he sees somethin', he don't know whether it's right or not. He can't turn to some other guy and ast him if he sees it too. He can't tell. He got nothing to measure by."

6 John Steinbeck's son criticises Texas over use of fiction in death row cases Thomas Steinbeck says state's use of character Lennie Small to justify execution of Marvin Wilson is 'profoundly tragic' Guardian.co.uk, Wednesday 8 August EDT The state of Texas has used John Steinbeck's character Lennie as a benchmark in defining learning difficulties. Photograph: Snap/Rex Features The son of John Steinbeck has excoriated the state of Texas for using the mental disability of the Nobel prize-winning author's fictional creation Lennie Small to define learning difficulties and thus to justify its execution of Marvin Wilson yesterday. Although the execution of intellectually disabled prisoners was banned by the US supreme court in 2002, Texas used the discretion allowed to individual states to come up with its own criteria of learning difficulties. These use the character of Lennie, the gentle simpleton who doesn't know his own strength from Steinbeck's 1937 novel Of Mice and Men, as a benchmark, with the court writing: "Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt". The state executed Wilson yesterday, despite a medical diagnosis that the prisoner, who was put on death row for the 1992 murder of a police informant, was "mentally retarded" with an IQ of 61. Steinbeck's son Thomas Steinbeck, an author himself, has decried the situation as "insulting, outrageous, ridiculous and profoundly tragic", and said that if his father were still alive "he would be deeply angry and ashamed to see his work used in this way". "Prior to reading about Wilson's case, 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, ie Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die," he said in a statement. John Steinbeck, said his son, "was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. 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."