A Texas execution flouts the law
Lawyer
asks how the state of Texas can ignore a Supreme Court ruling banning
the execution of the mentally retarded and suffer no consequences.
asks how the state of Texas can ignore a Supreme Court ruling banning
the execution of the mentally retarded and suffer no consequences.
August 28, 2012
Marvin WilsonON AUGUST 7, Texas killed Marvin Wilson--the 484th person the Lone
Star State has executed since the death penalty was reinstated in 1977.
Wilson's execution became national news because he was mentally
retarded: his IQ had been measured at 61. He was also my client.
Star State has executed since the death penalty was reinstated in 1977.
Wilson's execution became national news because he was mentally
retarded: his IQ had been measured at 61. He was also my client.
When I first met Wilson nearly seven years ago, he was soft-spoken,
almost shy. His reading and writing skills were around the level of my
son's, who was 5 at the time. He told me getting convicted of murder was
good because it gave him an opportunity to learn a lot of things. I
asked him what he meant. He said, "You know, how to live on your own and
things."
almost shy. His reading and writing skills were around the level of my
son's, who was 5 at the time. He told me getting convicted of murder was
good because it gave him an opportunity to learn a lot of things. I
asked him what he meant. He said, "You know, how to live on your own and
things."
In 2002 the Supreme Court ruled in Atkins v. Virginia that it
was unconstitutional to execute the mentally retarded. You might think
that would have ended the execution of the mentally retarded, but you
would be wrong.
was unconstitutional to execute the mentally retarded. You might think
that would have ended the execution of the mentally retarded, but you
would be wrong.
Why? Because Texas executes the mentally retarded anyway, and the
federal courts don't seem to care. In a 2004 decision the Texas Court of
Criminal Appeals issued a decision called Ex parte Briseno, which
basically said it is OK to execute people who are mentally retarded, so
long as their retardation is "mild."
federal courts don't seem to care. In a 2004 decision the Texas Court of
Criminal Appeals issued a decision called Ex parte Briseno, which
basically said it is OK to execute people who are mentally retarded, so
long as their retardation is "mild."
That is not what the Supreme Court said in Atkins. In fact, it
is pretty much the opposite of what the Supreme Court said. Without
putting too fine a point on it, doing the opposite of what the Supreme
Court says is what is known as being lawless. Which raises the question:
If you do something over and over again, and court after court appears
not to care, is it still lawless?
is pretty much the opposite of what the Supreme Court said. Without
putting too fine a point on it, doing the opposite of what the Supreme
Court says is what is known as being lawless. Which raises the question:
If you do something over and over again, and court after court appears
not to care, is it still lawless?
- - - - - - - - - - - - - - - -
LET'S NOT dance on the head of that pin just yet. Instead, some
background: Wilson's legal team, which included five lawyers as well as
five law students from the University of Houston, where I teach, asked
both state and federal courts to halt his execution. We had several
arguments, but the one incontestable proposition was that Wilson was
mentally retarded.
background: Wilson's legal team, which included five lawyers as well as
five law students from the University of Houston, where I teach, asked
both state and federal courts to halt his execution. We had several
arguments, but the one incontestable proposition was that Wilson was
mentally retarded.
Five IQ tests and testimony from numerous witnesses proved it. During
the state court litigation, the only psychological expert to express an
opinion testified that he was retarded. The state neither undermined
his testimony nor had its own expert dispute that claim.
the state court litigation, the only psychological expert to express an
opinion testified that he was retarded. The state neither undermined
his testimony nor had its own expert dispute that claim.
So if the Supreme Court says you cannot executed the mentally
retarded, and the only expert to testify says Marvin Wilson was
retarded, how is it possible he got executed? Welcome to Texas!
retarded, and the only expert to testify says Marvin Wilson was
retarded, how is it possible he got executed? Welcome to Texas!
Here's an interesting statistic: nationwide, about four in 10
death-row inmates raising Atkins claims have prevailed. But in Texas,
that number is one in four. One possible explanation for the disparity
is that Texas does not send as many mentally retarded people to death
row. But I've been a death penalty lawyer for more than 20 years, and I
can tell you firsthand that explanation doesn't fly.
death-row inmates raising Atkins claims have prevailed. But in Texas,
that number is one in four. One possible explanation for the disparity
is that Texas does not send as many mentally retarded people to death
row. But I've been a death penalty lawyer for more than 20 years, and I
can tell you firsthand that explanation doesn't fly.
Which leaves the second, and true, explanation: Texas has found a way
to circumvent the Constitution, and neither the U.S. Court of Appeals
for the Fifth Circuit nor the Supreme Court appears to care. That might
surprise you, if you believe in that thing called the rule of law, but
death-penalty lawyers in Texas aren't surprised, because this has
happened before.
to circumvent the Constitution, and neither the U.S. Court of Appeals
for the Fifth Circuit nor the Supreme Court appears to care. That might
surprise you, if you believe in that thing called the rule of law, but
death-penalty lawyers in Texas aren't surprised, because this has
happened before.
In 1989, the Supreme Court handed down a decision called Penry v. Lynaugh.
The case involved an inmate, Johnny Paul Penry, with an IQ in the
mid-50s. The court in that case declined to prohibit the execution of
the mentally retarded, but it did say that the Texas system was
fundamentally broken, because juries had no way to spare certain
defendants from death, even if they believed those defendants should be
sentenced to life in prison.
The case involved an inmate, Johnny Paul Penry, with an IQ in the
mid-50s. The court in that case declined to prohibit the execution of
the mentally retarded, but it did say that the Texas system was
fundamentally broken, because juries had no way to spare certain
defendants from death, even if they believed those defendants should be
sentenced to life in prison.
Doing the opposite of what the Supreme Court says is what is known as
being lawless. But if you do something over and over again, and court
after court appears not to care, is it still lawless?
being lawless. But if you do something over and over again, and court
after court appears not to care, is it still lawless?
I gave an interview after that decision saying its consequences would
be dramatic; I predicted scores of death-row inmates in Texas would
benefit. But I was young and naive. I did not realize Texas would ignore
the decision, and that the Fifth Circuit and the Supreme Court wouldn't
care. But that is precisely what happened.
be dramatic; I predicted scores of death-row inmates in Texas would
benefit. But I was young and naive. I did not realize Texas would ignore
the decision, and that the Fifth Circuit and the Supreme Court wouldn't
care. But that is precisely what happened.
Over the next 15 years, more than 100 inmates with powerful so-called Penry
claims got executed. They argued their juries had not had any way to
sentence them to life in prison rather than death, even if those juries
had wanted to spare them. Yet neither the Texas courts nor the Fifth
Circuit nor even the Supreme Court did a thing.
claims got executed. They argued their juries had not had any way to
sentence them to life in prison rather than death, even if those juries
had wanted to spare them. Yet neither the Texas courts nor the Fifth
Circuit nor even the Supreme Court did a thing.
Finally, a decade and a half later, after nearly everyone with a Penry
claim had already been executed, the Supreme Court broke its silence
and issued a searing rebuke to both the state court and the Fifth
Circuit, saying they were being unfaithful to the ruling in Penry.
claim had already been executed, the Supreme Court broke its silence
and issued a searing rebuke to both the state court and the Fifth
Circuit, saying they were being unfaithful to the ruling in Penry.
The rebuke was treated as a big deal by the national media.
Overlooked was the fact that the Supreme Court knew what had been going
on in Texas all along. Yet the justices did nothing, and by the time
they decided to say something, they knew full well that virtually every
inmate whose life had depended on the faithful application of the Penry decision had already been buried.
Overlooked was the fact that the Supreme Court knew what had been going
on in Texas all along. Yet the justices did nothing, and by the time
they decided to say something, they knew full well that virtually every
inmate whose life had depended on the faithful application of the Penry decision had already been buried.
- - - - - - - - - - - - - - - -
SO WHY doesn't the Supreme Court make a bigger stink when its own
rulings aren't followed? Isn't that its core purpose, after all? To lay
down the law of the land for all other courts?
rulings aren't followed? Isn't that its core purpose, after all? To lay
down the law of the land for all other courts?
There are at least two explanations for why this happens. One is that
over the past quarter century or so, the federal courts have taken a
largely hands-off approach to the administration of criminal justice.
They let the states do what they want. In part, this attitude is
required by a federal law enacted during the Clinton Administration, but
more fundamentally, it dates to an ideological shift in the mid- and
late-1980s that resulted in a greater judicial indifference to legal
violations in criminal cases.
over the past quarter century or so, the federal courts have taken a
largely hands-off approach to the administration of criminal justice.
They let the states do what they want. In part, this attitude is
required by a federal law enacted during the Clinton Administration, but
more fundamentally, it dates to an ideological shift in the mid- and
late-1980s that resulted in a greater judicial indifference to legal
violations in criminal cases.
When a murder trial in China takes less than a day, or Islamists in
Mali chop of the hand of a condemned thief, we look down our noses at
the crudity of those legal regimes. But ignoring the rights of the
accused in a stadium filled with screaming hordes is not all that
different from disregarding the rights of an accused in a courtroom full
of reporters.
Mali chop of the hand of a condemned thief, we look down our noses at
the crudity of those legal regimes. But ignoring the rights of the
accused in a stadium filled with screaming hordes is not all that
different from disregarding the rights of an accused in a courtroom full
of reporters.
Another factor is that the Supreme Court is a fundamentally
conservative institution. Every once in a while, it will do something
dramatic--strike down racial integration, uphold a woman's right to
control her own body, prohibit the execution of the retarded--but those
decisions are remarkable because they are exceptional.
conservative institution. Every once in a while, it will do something
dramatic--strike down racial integration, uphold a woman's right to
control her own body, prohibit the execution of the retarded--but those
decisions are remarkable because they are exceptional.
And more important, after nearly every controversial decision, the
justices seem to have a Lady Macbethian urge to wash their hands of what
they have done. They back away and hem and haw and leave it to the
lower courts to implement their decisions. But if the lower courts balk,
the decision does not get implemented.
justices seem to have a Lady Macbethian urge to wash their hands of what
they have done. They back away and hem and haw and leave it to the
lower courts to implement their decisions. But if the lower courts balk,
the decision does not get implemented.
It obviously doesn't happen all the time--the mere prospect of being
rebuked by the Supreme Court probably makes lower courts reluctant to be
altogether contemptuous of their rulings. But it happens often enough
to be worrisome, and what's worse, it happens mostly in cases involving
the powerless.
rebuked by the Supreme Court probably makes lower courts reluctant to be
altogether contemptuous of their rulings. But it happens often enough
to be worrisome, and what's worse, it happens mostly in cases involving
the powerless.
The weeks leading up to Wilson's execution involved complicated legal
issues, but we gave up trying to explain the details to him. He knew
there was activity, of course, but he was simply incapable of
understanding it.
issues, but we gave up trying to explain the details to him. He knew
there was activity, of course, but he was simply incapable of
understanding it.
The fact of his mental deficiency may not matter to you, since he was
unquestionably guilty of participating in a crime that included a
murder. You might say that even the retarded should know not to kill. I
could argue with you that you are wrong, but if you also respect the
rule of law, you would have to acknowledge that, so long as the Supreme
Court has the final say on what the Constitution means, the states are
not permitted to execute the retarded.
unquestionably guilty of participating in a crime that included a
murder. You might say that even the retarded should know not to kill. I
could argue with you that you are wrong, but if you also respect the
rule of law, you would have to acknowledge that, so long as the Supreme
Court has the final say on what the Constitution means, the states are
not permitted to execute the retarded.
That they do anyway, and do so with impunity, reveals more about our
attitude toward the rule of law than our attitude toward crime.
attitude toward the rule of law than our attitude toward crime.
First published at The Daily Beast.
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