Texas Executes Prisoner with Fetal Alcohol Syndrome After Federal Appeals Court Denies Stay

Texas exe­cut­ed Mark Soliz (pic­tured) on September 10, 2019, after a fed­er­al appeals court denied him a stay and dis­missed his claim that his life­long men­tal impair­ments result­ing from fetal alco­hol syn­drome should exempt him from exe­cu­tion. Soliz had sought a stay and to be resen­tenced to life with­out parole, argu­ing that his mother’s alco­hol con­sump­tion dur­ing her preg­nan­cy impaired his intel­lec­tu­al devel­op­ment in a man­ner that was the “ ​‘func­tion­al equiv­a­lent’ of con­di­tions already rec­og­nized as dis­qual­i­fy­ing exemp­tions to the death penalty.”

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that peo­ple with intel­lec­tu­al dis­abil­i­ty can­not be exe­cut­ed. Soliz’s appeal stat­ed that “[e]xpansion of the Supreme Court’s hold­ing in Atkins to pro­tect offend­ers suf­fer­ing from FASD [fetal alco­hol spec­trum dis­or­der] is a con­stant­ly evolv­ing doc­trine that mer­its fur­ther con­sid­er­a­tion.” He also argued that recent changes to the DSM‑5, the most recent diag­nos­tic man­u­al used by men­tal health pro­fes­sion­als to diag­nose men­tal ill­ness and devel­op­men­tal dis­or­ders, such as intel­lec­tu­al dis­abil­i­ty, mean that ​“high­er IQ scores no longer bar a diag­no­sis of an intellectual disability.” 

Soliz’s attor­ney, Seth Kretzer, said the exe­cu­tion ​“should cer­tain­ly be stayed. … Mr. Soliz is a vic­tim of his moth­er’s inges­tion of harm­ful sub­stances in the womb. Supreme Court doc­trine will not per­mit the exe­cu­tion of peo­ple who are func­tion­al­ly devel­op­men­tal­ly impaired.” On September 9, 2019, the U.S. Court of Appeals for the Fifth Circuit reject­ed Soliz’s appeal and denied his appli­ca­tion for a stay, not­ing that fed­er­al habeas cor­pus review is lim­it­ed to fed­er­al con­sti­tu­tion­al law that has already been clear­ly estab­lished by pri­or U.S. Supreme Court deci­sions. The appeals court said that the . Supreme Court’s rul­ing in Atkins declared the death penal­ty uncon­sti­tu­tion­al only when applied to indi­vid­u­als with the par­tic­u­lar devel­op­ment dis­or­der ​“intel­lec­tu­al dis­abil­i­ty” (then known as ​“men­tal retar­da­tion”), as opposed to per­sons who have gen­er­al intel­lec­tu­al dis­abil­i­ties as a result of other disorders.

Soliz’s coun­sel had argued in an ear­li­er appeal that he qual­i­fied for a diag­no­sis of intel­lec­tu­al dis­abil­i­ty. The courts, how­ev­er, reject­ed his claim rul­ing that that Soliz’s IQ score of 75 was slight­ly above the thresh­old for a diag­no­sis of intel­lec­tu­al dis­abil­i­ty. Texas pris­on­er Dexter Johnson suc­cess­ful­ly obtained a stay of exe­cu­tion in August, argu­ing that the Texas court’s denial of his intel­lec­tu­al dis­abil­i­ty claim should be recon­sid­ered in light of the changes in the new DSM relat­ing to the way in which intel­lec­tu­al dis­abil­i­ty is deter­mined. The Fifth Circuit dis­tin­guished its rul­ing in Johnson’s case, writ­ing that for Johnson​’s hold­ing to apply to him, Soliz ​“need­ed to show a mean­ing­ful change in the man­ner in which the med­ical field diag­noses FASD and that his dis­or­der is now med­ical­ly equat­ed to intel­lec­tu­al dis­abil­i­ty as defined in Atkins.”

Like many death-row pris­on­ers, Soliz expe­ri­enced chron­ic trau­ma through­out his child­hood. He wit­nessed his aunt’s mur­der and was sur­round­ed by pros­ti­tu­tion and drugs. Defense attor­ney Greg Westfall said of Soliz: ​“That case was over­whelm­ing­ly sad for every­one involved. The effects of neglect and trau­ma on a devel­op­ing brain are becom­ing bet­ter known. Basically, Soliz had a mon­strous child­hood and should not be exe­cut­ed. The death penal­ty is stu­pid. It ful­fills none of the promise of clo­sure and is incredibly expensive.” 

Soliz’s case also high­lights the high costs of death-penal­ty tri­als. According to Johnson County District Attorney Dale Hanna, ​“It was our most expen­sive and longest tri­al in the county’s his­to­ry. The expense of these type tri­als is just stag­ger­ing.” County Auditor Kirk Kirkpatrick said the tri­al, which end­ed in 2012, cost $903,544.13, not includ­ing the cost of Soliz’s incar­cer­a­tion or appeals.