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.