Marvin Wilson, who has executed yesterday by the State of Texas, had a disability that should have rendered him constitutionally ineligible for the death penalty. In writing about Wilson’s final, unsuccessful appeals for his life, I made the editorial decision to refer to his disability by the name currently assigned to it by clinicians and by the Supreme Court. Unfortunately, that name reads much more like a hateful taunt than the kind of term that is appropriate in a scientific text or a courthouse — the clinical and legal name for Wilson’s disability is “mental retardation.”
As some writers that I respect a great deal questioned this editorial decision, I wanted to take a moment to explain why this decision was made, and why I believed it was necessary to avoid papering over a serious flaw in our justice system. I will also note that, after the Supreme Court decided not to halt Wilson’s execution last night, a colleague pointed out to me that, while the current edition of the Diagnostic and Statistical Manual of Mental Disorders uses the term “mental retardation” to describe Wilson’s disability, the forthcoming edition of this manual will likely use the term “intellectual disability.” In the future, I will use this far less distressing term to describe Wilson’s disability, except when quoting court decisions or other documents that still use the soon-to-be-antiquated term.
Some news outlets chose to use terms such as “mentally impaired” or “mentally disabled” to describe Mr. Wilson’s disability, but these terms lack precision. Wilson was not just mentally disabled, he had a very specific mental disability that should have enabled him to invoke the Eight Amendment’s protections against cruel and unusual punishment. In Atkins v. Virginia, the Supreme Court did not hold that all mentally disabled persons cannot be executed, it held that “death is not a suitable punishment for a mentally retarded criminal.” And the relative narrowness of this holding can often leave other mentally disabled persons unable to claim the Constitution’s protection.
Last June, when Ohio was scheduled to execute a severely mentally ill man named Abdul Awkal, Awkal was unable to invoke the constitutional rule announced in cases like Atkins, despite the fact that there is no principled reason why he should not also have been constitutionally ineligible for execution. Atkins and a similar case prohibiting executions of juvenile offenders are rooted in the Supreme Court’s understanding that both juveniles and persons with Wilson’s disability possess diminished mental capacity that makes it harder for them “to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.” This same rationale also applies to people like Awkal, who was diagnosed with a severe mental illness: schizoaffective disorder, depressive type. And yet the Supreme Court has not extended the same protections to people like Awkal that it supposedly extended to people like Wilson in Atkins.
General terms like “mentally disability” and “mentally impaired” do not capture this illogical distinction between people like Wilson and people like Awkal. Both men were diagnosed with the kind of disability which should render them constitutionally ineligible for the death penalty, but only persons with Wilson’s specific disability fall within the Court’s Atkins decision. I chose to use the specific clinical term for Wilson’s disability because I wanted to be precise about which individuals have full access to the Eighth Amendment and which do not. (It’s worth noting that a court eventually held that Awkal cannot constitutionally be executed right now, but it relied on a relatively narrow rule that could still enable Awkal to be executed in the future.)
Of course, after Wilson’s execution, it is not even clear that the intellectually disabled enjoy meaningful access to the Constitution. The Supreme Court did not explain why it turned down Wilson’s case, and it is always dangerous to speculate as to their motivations. Nevertheless, it appears likely that Texas was able to execute Wilson because of a loophole in the Atkins decision.
Although the Court referenced the clinical definition of “mental retardation” in Atkins it also left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Texas took this license and ran with it, coming up with a standard for determining if an inmate can be executed that bears little resemblance to the clinical definition of intellectual disability.
Needless to say, if each state is allowed to define on its own which inmates qualify as “mentally retarded,” than the Supreme Court’s holding that “death is not a suitable punishment for a mentally retarded criminal” becomes meaningless. The justices chose not to use Wilson’s case to close this loophole. If they leave it open, however, there should be little doubt that states like Texas will continue to exploit it.