EDITORIALS: Texas Inmate With IQ of 62 Faces Imminent Execution

A recent edi­to­r­i­al in the Houston Chronicle high­lights the case of Texas death-row inmate Milton Mathis, whose IQ of 62 places him well below the thresh­old for intel­lec­tu­al dis­abil­i­ty (for­mer­ly called ​“men­tal retar­da­tion”). Mr. Mathis faces exe­cu­tion on June 21, despite the 2002 U.S. Supreme Court rul­ing in Atkins v. Virginia, which banned the exe­cu­tion of inmates with intel­lec­tu­al dis­abil­i­ties. The Chronicle not­ed, ​“If put to death, Milton Mathis would have one of the low­est — if not the low­est — undis­put­ed IQ scores of any Texas inmate sen­tenced to cap­i­tal pun­ish­ment since that rul­ing took effect.” Mathis’ lawyers raised this issue in both his state and fed­er­al appeals, but the state court reject­ed the claim, and the fed­er­al court denied a stay, not real­iz­ing that doing so pre­vent­ed fur­ther lit­i­ga­tion in state court. The fed­er­al judge lat­er real­ized her error, but at that point, she lacked juris­dic­tion to change the rul­ing. Andrea Keilen, exec­u­tive direc­tor of the Texas Defender Service, said, ​“What is real­ly trou­bling is that in this case process has trumped sub­stance. The evi­dence of men­tal retar­da­tion is com­pelling, over­whelm­ing, and, because the state courts heard it, the fed­er­al courts have not allowed the evi­dence to be intro­duced.” The Chronicle con­clud­ed: ​“In essence, bar­ring fed­er­al inter­ven­tion or the gov­er­nor’s clemen­cy, Texas will unlaw­ful­ly and unjust­ly exe­cute a men­tal­ly retard­ed indi­vid­ual because of legal tech­ni­cal­i­ties and the state’s fail­ure to weigh Mathis’ clin­i­cal con­di­tion.” Read full editorial below.

Let’s avoid a trav­es­ty: Court must act swift­ly before Texas exe­cutes a men­tal­ly retarded individual

June 9, 2011

In 2002, the U.S. Supreme Court ruled it uncon­sti­tu­tion­al to exe­cute a per­son with men­tal retar­da­tion. But on June 21 of this year, a men­tal­ly retard­ed Texas inmate is due to be exe­cut­ed. If put to death, Milton Mathis would have one of the low­est — if not the low­est — undis­put­ed IQ scores of any Texas inmate sen­tenced to cap­i­tal pun­ish­ment since that rul­ing took effect.

In 1999, Mathis scored 62 on a stan­dard­ized IQ test admin­is­tered by the state cor­rec­tion­al sys­tem — eight to 13 points below the thresh­old for men­tal retar­da­tion. Recent thor­ough exam­i­na­tions have sup­port­ed that find­ing. But because of an unfor­tu­nate con­ver­gence of Texas pro­ce­dure and fed­er­al judi­cial error, cou­pled with a state court that gave short shrift to his men­tal retar­da­tion claims, Mathis is close to los­ing his life. (A fed­er­al judge denied a stay of exe­cu­tion, not real­iz­ing that would pre­clude lit­i­ga­tion in state dis­trict court. By the time she real­ized her error, the judge lacked juris­dic­tion to revise the ruling.)

Last week, attor­neys for Mathis filed a brief ask­ing the Fifth Circuit Court of Appeals to allow a review of the fed­er­al mer­its of his claim of men­tal retar­da­tion, and to stay exe­cu­tion to allow con­sid­er­a­tions to pro­ceed delib­er­ate­ly. They also deliv­ered a clemen­cy peti­tion to the office of Gov. Rick Perry.

Sentenced to die in 1999 for mul­ti­ple-vic­tim mur­ders in Fort Bend County, Mathis — like all exe­cu­tion-eli­gi­ble pris­on­ers — was enti­tled to ​“a mean­ing­ful state appeals process and a mean­ing­ful fed­er­al appeals process,” said Andrea Keilen, exec­u­tive direc­tor of the Texas Defender Service. It seems he got nei­ther. He did go through a state process, which was hard­ly mean­ing­ful, and the fed­er­al process is in lim­bo, pend­ing the out­come of last week’s filing.

The only expert to tes­ti­fy in the state pro­ceed­ing, an expe­ri­enced foren­sic psy­chol­o­gist, admin­is­tered five dif­fer­ent tests to Mathis, includ­ing the Wechsler Adult Intelligence Scale-Third Edition (WAIS III) — con­sid­ered the gold stan­dard of intel­li­gence tests. She also inter­viewed him for a full day and reviewed affi­davits and pre­vi­ous tests. On the WAIS III test he scored 64 — a lit­tle high­er than the state had assessed in 1999. Her con­clu­sion was that Mathis had mental retardation.

But the judge signed off on the pro­posed find­ings sub­mit­ted by the pros­e­cu­tion, that Mathis was not men­tal­ly retard­ed, even though the state offered no tes­ti­mo­ny, nor did it test Mathis for men­tal retar­da­tion. It based its find­ings in part on a child­hood IQ test score of 79 — a fact that experts say is not incon­sis­tent with adult men­tal retar­da­tion. The state called the WAIS III test — the sci­en­tif­ic stan­dard — ​“too sub­jec­tive” and cit­ed ​“racial bias” that stereo­types African-Americans as hav­ing low IQs. It also cit­ed Mathis’ abil­i­ty to have sex, to lie, to baby-sit and to steal dogs as evi­dence he was not mentally retarded.

(Earlier this year, the Texas State Board of Examiners of Psychologists banned a Fort Worth doc­tor from test­ing inmates because he rou­tine­ly used those same scor­ing prac­tices to inflate IQ scores and make defen­dants death penalty-eligible.)

In essence, bar­ring fed­er­al inter­ven­tion or the gov­er­nor’s clemen­cy, Texas will unlaw­ful­ly and unjust­ly exe­cute a men­tal­ly retard­ed indi­vid­ual because of legal tech­ni­cal­i­ties and the state’s fail­ure to weigh Mathis’ clin­i­cal con­di­tion. ​“What is real­ly trou­bling,” Keilen told the Chronicle, ​“is that in this case process has trumped sub­stance. The evi­dence of men­tal retar­da­tion is com­pelling, over­whelm­ing, and, because the state courts heard it, the fed­er­al courts have not allowed the evi­dence to be introduced.”

One won­ders where is the jus­tice in our jus­tice sys­tem, when a state ignores the Supreme Court’s rul­ing in its haste to exe­cute a men­tal­ly retard­ed per­son. We urge the Fifth Circuit Court of Appeals to act prompt­ly and allow fed­er­al con­sid­er­a­tion of the mer­its of Mathis’ claim.