‘Leaving it up to Texas over how to comply … appears to be something akin to leaving the fox in charge of the henhouse’ - Rob Freer

The Texas authorities should commute the death sentence of a prisoner assessed as having a mental disability who is facing execution next week, Amnesty International said today.

Marvin Wilson, a 54-year-old African American man, is due to be put to death by lethal injection on Tuesday 7 August for a murder committed in 1992. A clinical neuropsychologist has concluded that he has “mental retardation”.

A decade ago, the US Supreme Court prohibited the execution of offenders with “mental retardation” in a landmark legal ruling (the Atkins v Virginia case), but the Court left the decision over how to comply with the ruling to individual states.

Before the Atkins ruling, Texas had executed more inmates diagnosed with “mental retardation” than any other state. A decade on, its legislature has yet to enact a law to comply with Atkins, and there are fears that “temporary” guidelines developed by the Texas Court of Criminal Appeals in 2004 are letting the state execute offenders who should be exempted from this punishment under the US Constitution. 

In 2003, Wilson’s lawyers filed an “Atkins claim” to challenge the constitutionality of his death sentence. They presented the courts with the detailed conclusions of a court-appointed neuropsychologist with 22 years of clinical experience who assessed Wilson as meeting the criteria for mental retardation.

The state of Texas has presented no expert testimony to rebut that evidence, but state courts nonetheless rejected the Atkins claim applying Texas’ much-criticised guidelines. The federal courts, required under US law to give a high level of deference to state court rulings, have upheld the denial. Wilson’s lawyers are now seeking Supreme Court intervention on his case, requesting that the Court examines the situation in Texas on this issue.

The last federal court to rule on the case - the US Court of Appeals for the Fifth Circuit in 2011 - has acknowledged that “other fact-finders might reach a different conclusion as to whether Wilson is mentally retarded on the evidence” that had been presented before the state court.

Amnesty International USA Researcher Rob Freer said:

“Leaving it up to Texas over how to comply with the Atkins ruling appears to be something akin to leaving the fox in charge of the henhouse.

“This is an irrevocable penalty and here is a federal court effectively saying that Wilson’s execution could be assessed as unconstitutional if put to another set of ‘fact-finders’. If nothing else, caution demands commutation.
 
“Surely that acknowledgement alone should make the Texas clemency authorities pause for thought.

“While a majority of countries have stopped executing anyone, let alone people with mental disabilities, the USA continues to buck this global trend, with Texas all too often leading the way.”

If Wilson’s execution goes ahead it would be the seventh execution in Texas this year, as the state heads for its 500th execution since resuming judicial killing 30 years ago. Nationwide, 1,301 people have been executed since the death penalty was reinstated in the USA in 1977, including 24 this year. Since resuming executions in December 1982, Texas accounts for 483, or more than a third, of the total.

Amnesty opposes the death penalty unconditionally in all cases, considering it to be a cruel, unnecessary and dehumanising punishment that in the USA’s case is riddled with discrimination, inconsistency and error.