State Standard for Determining Intellectual Disability Too Narrow
August 7, 2012
Marvin Lee Wilson has an intellectual disability and under US law should not be executed. Texas is circumventing the Constitution’s ban on cruel and unusual punishment.
Antonio Ginatta, US advocacy director

Update: Marvin Wilson was executed as scheduled on August 7, after both Texas Governor Rick Perry and the United States Supreme Court declined to intervene.

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(Washington, DC) – Texas should not execute a man who has significant intellectual disabilities, Human Rights Watch said today. Marvin Lee Wilson, who was sentenced to death for the abduction and murder of a police drug informant in 1992, is scheduled to be executed on August 7, 2012.

In 2002 the United States Supreme Court, in Atkins v. Virginia, prohibited the execution of people with intellectual disabilities, finding that such a practice violates the US Constitution’s ban on cruel and unusual punishment. While most states rely on a clinical evaluation to determine intellectual disability, Texas allows the execution of people who have been clinically diagnosed with an intellectual disability if they meet certain vague social criteria, called the “Briseño factors.” Wilson’s attorneys have exhausted appeals in the Texas court system and have applied to the US Supreme Court to delay the execution and review the case under Atkins.

“Marvin Lee Wilson has an intellectual disability and under US law should not be executed,” said Antonio Ginatta, US advocacy director at Human Rights Watch. “Texas is circumventing the Constitution’s ban on cruel and unusual punishment.”

The “Briseño factors,” named for the Texas court decision detailing them, consist of seven “evidentiary factors” that Texas finds to be indicative of intellectual disability. These factors include whether the defendant can formulate and carry out plans, display leadership, effectively lie or hide facts to protect the person’s self-interest, and respond appropriately and coherently. Texas appears to allow for execution if just one Briseño factor is met.

Tests revealed that Wilson has an IQ of 61, which is well under the legal standard and diagnostic range of 70 considered in Atkins. During the appeals process, Wilson was clinically diagnosed with an intellectual disability by a neuropsychologist. Several family members and friends also signed affidavits attesting to social behavior indicative of intellectual disability.

Using the Briseño factors, however, Texas state courts twice ruled that Wilson was still eligible to be executed. The court cited the fact that Wilson is married and has a child and that he lied to police to protect himself as proof that his execution is permissible.

“Texas courts seem to think people with intellectual disabilities shouldn’t be able to marry, have kids, or even lie,” Ginatta said. “The basis of the Briseño factors is both unfounded and discriminatory.”

The American Association on Intellectual and Developmental Disabilities, which has set forth criteria cited by the Supreme Court in determining intellectual disability, stated in a recent amicus curiae (“friend of the court”) brief that the Briseño factors “are based on false stereotypes … that effectively exclude all but the most severely incapacitated.”

In addition to the federal constitution, the US has obligations under international human rights law not to execute people with intellectual disabilities. In 2011, during the Universal Periodic Review process for the US at the United Nations Human Rights Council, the US supported a recommendation against executing people with “certain intellectual disabilities.”

In its 2006 Concluding Observations to the United States, the UN Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), stated that it “welcomes the Supreme Court’s decision in Atkins v. Virginia (2002), which held that executions of mentally retarded criminals are cruel and unusual punishments.” By allowing states broad leeway to determine intellectual disability, the US is violating its international obligations by permitting states to execute people with intellectual disabilities. As part of a federal government, Texas is also obligated to abide by the ICCPR “without limitations or exceptions.”

Human Rights Watch opposes capital punishment in all circumstances because the inherent dignity of the person is inconsistent with the death penalty. This form of punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error.