Despite the U.S. Supreme Court’s ban on the death penal­ty for defen­dants with men­tal retar­da­tion, Texas is plan­ning to exe­cute Marvin Wilson on August 7. Wilson has an IQ of 61 and adap­tive func­tion­ing lev­els even low­er; the only board-cer­ti­fied expert to eval­u­ate Mr. Wilson con­clud­ed he has men­tal retar­da­tion (now known as intel­lec­tu­al dis­abil­i­ty). Wilson strug­gled in school, and dropped out after the 10th grade. According to experts who assessed his men­tal health, Wilson con­tin­ues to be unable to per­form even the sim­plest tasks with­out assis­tance. This intel­lec­tu­al dis­abil­i­ty typ­i­cal­ly man­i­fests itself before the age of 18 and is objec­tive­ly deter­mined by men­tal health pro­fes­sion­als, inde­pen­dent of the crime that put the defen­dant on death row. Texas, how­ev­er, insists that it can lay­er addi­tion­al fac­tors onto the test for retar­da­tion, fac­tors not used by any oth­er states, not based on sci­en­tif­ic cri­te­ria, and which do relate to the orig­i­nal crime. This test is based on the ​“Briseño fac­tors” (named after the Texas court deci­sion that announced them), and allows an exe­cu­tion if (among oth­er fac­tors) the court deter­mines the crim­i­nal offense required fore­thought, plan­ning and com­plex exe­cu­tion. The American Association on Intellectual and Developmental Disabilities wrote in their recent brief in Chester v. Thaler, anoth­er case involv­ing the Briseño fac­tors that is pend­ing before the Supreme Court: “[The Texas] impres­sion­is­tic ​‘test’ directs fact-find­ers to use ​‘fac­tors’ that are based on false stereo­types about men­tal retar­da­tion that effec­tive­ly exclude all but the most severe­ly inca­pac­i­tat­ed.” Attorneys for Wilson have filed a peti­tion with the U.S. Supreme Court, ask­ing it to con­sid­er whether the Briseño fac­tors rep­re­sent an unrea­son­able appli­ca­tion of the Supreme Court’s rul­ing on mental retardation .

(See Wilson v. Thaler, peti­tion for cert. filed July 19, 2012; DPIC Posted, July 31, 2012). See Intellectual Disability.

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