Only in Texas: the Grave Error of Using Literature Rather than Scientific Methodology to Assess Mental Retardation in a Capital Sentence Case

On August 7, Texas plans to execute Marvin Wilson, a man who received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mental retardation (MR). His adaptive functioning registers at an even lower percentile. In 1998, a Beaumont jury convicted and capitally sentenced Mr. Wilson for the 1992 murder of Jerry Williams, which allegedly occurred after a fight at a gas station.

Despite enrolling in special education classes throughout his childhood, Mr. Wilson failed the 7th grade. He received mostly Ds and Fs when he repeated it, as well as when he was socially promoted to 8th and 9th grades. He dropped out of school for good in the 10th grade. Friends and family swore affidavits stating that, as a child, he frequently clamped his belt so tightly that he cut off blood circulation, that he couldn’t use simple toys such as tops and marbles, and that he sucked his thumb into adulthood. According to the MR expert who assessed him, Mr. Wilson continues to be unable to perform even the simplest tasks without assistance.

In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Supreme Court observed that people with MR are less culpable for their crimes and that they are not equipped to mount effective criminal defenses. As a result, they are particularly vulnerable to wrongful convictions, inflated culpability assessments, and erroneous findings of leadership in multi-party crimes. In defining MR, Atkins relied on the scientific criteria set forth by the leading clinical authorities, including what was then known as the AAMR (the American Association on Mental Retardation). The AAMR thereafter changed its name to the AAIDD (the American Association on Intellectual and Developmental Disabilities).

Texas has executed more than four times as many people as any other state in the modern era. It is now poised to carry out the particularly egregious execution of Mr. Wilson—one that underscores the jurisdiction’s ongoing status as this country’s most extreme outlier on all issues pertaining to capital sentencing. Mr. Wilson was diagnosed with MR by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. (See this addendum to his report as well).  At Mr. Wilson’s MR hearing, the state presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis. The state court actually reasoned that Mr. Wilson did not have MR because he “functioned sufficiently in his younger years to hold jobs, get a drivers license, marry and have a child.”  In the absence of judicial or executive intervention, Texas will execute Mr. Wilson next Tuesday, pursuant to the bizarre criteria that its state courts use to identify offenders with MR.

Utilizing the AAMR/AAIDD’s clinical criteria for mental retardation, Dr. Trahan met with Mr. Wilson for eight hours, reviewed his school and medical records, and administered or evaluated a battery of leading neuropsychological testing. He examined Mr. Wilson’s memory, language development, adaptive skills, conceptual reasoning, practical skills and other scientifically-recognized indicia of mental functioning. Taking into account all of that data, Dr. Trahan concluded that Mr. Wilson clearly had mild MR.

Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with MR in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption. The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind.  Although literature can tell us much about society and  law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation.  That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals.

As the AAIDD 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.”

I’m thankful to my colleague Lee Kovarsky, an extraordinary habeas scholar and tireless advocate, who has been representing Mr. Marvin and for his incredibly hard work on Mr. Marvin’s cert petition.

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14 Responses

  1. Brett Bellmore says:

    I realize it’s always irritating when people outside one’s specialty make judgements relating to one’s specialty. However, could it not be that the Texas courts actually mean to exclude all but the most severely incapacitated? That is to say, that they’re not screwing up, they’re drawing a line in a place you’d not put it?

    Possibly they’re drawing a line in a place the Supreme Court didn’t mean to put it, either.

  2. Brett, for the sake of argument, we’ll assume that this is indeed “line drawing,” how does that change the point made in the post, that they’re relying on non-scientific criteria and standards “set forth by the leading clinical authorities”? After all, you still need criteria for such line drawing.

  3. Brett Bellmore says:

    Well, the criteria you’re citing are for whether somebody is mentally retarded at all, not the degree of retardation. In fact, you concede that they do identify the most severely incapacitated. Perhaps that IS what they’re trying to do.

    It’s a perennial problem in law, I think: You want to take advantage of genuine expertise in other fields, but you can’t defer to experts to such an extent that they’re effectively dictating the content of the law.

  4. Brett, I did not realize I was conceding that the criteria have to do with “identify[ing] the most severely incapacitated,” and I happen to think even mild retardation (for reasons set forth by Justice Stevens in Atkins v. Virginia) diminish culpability and should be a mitigating factor in sentencing.

    Of course there is the question of the role of expertise in the law generally, scientific and otherwise, but in the instant case the question and its resolution are pretty straightforward: commonly accepted scientific expertise and judgment regarding mental retardation is an evidentiary trump over non-scientific sources (putative or irrelevant evidence).

  5. The Mad Scientist is the central mythical demon of the 20th century.
    Speech claiming to be science has justified more destruction than speech claiming only to be art.

    An amusing parallel. For me the timing was perfect.

    Perhaps philosophy has fallen into disfavor among humanists because philosophy has not been true to its roots. According to one sort of myth of this sort, traditional philosophers were commentators on culture. In the 1920s, philosophy was then ruined by the Logical Positivists, who created a new, dry, vision of philosophy. In their quest to declare the traditional questions of metaphysics meaningless, they divorced philosophy from the broader connections with culture and politics that give it life. The Positivists lost favor on the continent, and obtained posts in the barren intellectual wastelands of Chicago and New Haven, bringing their dry, logical methodology with them from Vienna.
    This story is false in every detail. Logical Positivists prized the deliverances of mathematics and science (as did Aristotle, Descartes, Leibniz, and Kant). But nothing follows about a lack of political and cultural presence. Core members of the Vienna Circle, such as Carnap, Feigl, and Neurath, all lectured at the Dessau Bauhaus. As Peter Galison has emphasized (“Aufbau/Bauhaus: Logical Positivism and Architectural Modernism,” Critical Inquiry, Vol. 16, No. 4), what united the Logical Positivists and the members of Bauhaus was a desire to create an alternative vision of social relations than the one promulgated by Volkisch thought – the intellectual representative of National Socialism.

    The universalism of modern architecture was if fact an illusion and the plans a failure.

    I’m not defending an obscene decision any more than I would defend eugenics, but please, stop pretending like the author of the quote above. that philosophy, and law, do not concern values more than science.

    For you and the idiot who posted at Balkinization, a piece on the humanities in society, here.

  6. Seth,

    I can be obtuse at times, and perhaps I have an impoverished conception of what it means to make an inference, trace an implication, tease out a presupposition, expose an assumption, or appreciate a presumption, but I can’t for the life of me understand how your comment has anything whatsoever to do with the subject matter of the post. No one has attacked or disparaged “the humanities,” and nothing follows from an appreciation of the natural and social sciences to the effect that other forms of “seeing” and knowing are illegitimate or diminished (It just so happens that I blog at The Literary Table so as to endeavor to communicate the relevance of literature to all sorts of questions and concerns we face in contemporary society….). Perhaps you can help me (and maybe a few others) understand better what it is you’re trying to say as it bears upon the original post.

  7. “How’d he score?”
    “What the’ cut off?”
    “Ok then. Gas chamber it is”

    And now all can sleep at night.

    We need more humanism not more science.

  8. As Danielle writes, The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind. Although literature can tell us much about society and law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation.”

    Indeed, it’s analogous to reading a biography of Ernest Hemingway so as to discover the pertinent physiological and mental effects on the body and mind respectively of heavy drinking as part of the greater effort to identify the basic diagnostic criteria of alcoholism.

  9. We need science when and where appropriate, and a humanistic science of the sort we find, say, exemplified or discussed in the works of Raymond Tallis, Paul Feyerabend, John Ziman, R.C Lewontin, Philip Kitcher, Mary Midgley, Amartya Sen, Kenan Malik, Jon Elster, Robert E. Goodin, Jonathan Lear, Kristin Shrader-Frechette, Jerome Bruner, John Dupre, Andrew Sayer, Roy Bhaskar, Nancy Cartwright, Rachel Cooper, Mary Hesse, Evelyn Fox Keller, Deirdre McCloskey, Hilary Putnam, Nicholas Rescher, Daniel N. Robinson, Michael Ruse, John Z. Sadler, Stephen Toulmin, among others. And yes, we need humanism too.

    Because one points out the relevance of a scientific determination of mental competency in the manner above, it hardly means one is thereby content or happy with how the law in general deals with capital punishment, or what folks think about capital punishment, indeed, that one is supportive of capital punishement at all. These are topics outside the intended scope of the post. That said, I agree we need “more humanism,” but again, that hardly need mean or entail we disparage science, or have a “scientistic” attitude toward science, or lack the ability to “critique” contemporary forms and practices of science (in the way, say, Philip Mirowski does so well), or fail to see its relevance to the above case.

  10. “…it formulated the Briseño factors with Steinbeck’s Lennie in mind.”
    “Cruel and unusual punishment”
    “…formulated with the constitution in mind”

    Words, just like the words Steinbeck used. Words, no more no less.
    The judges made their decision based not on the book but on their interpretation of it. Not the same thing.

    Read the piece by J. Stanley; he’s a friend of Leiter.

    People now like to mistake ideas for values, or they think somehow values are merely the result. So what are the values that say that it’s fine to kill someone who tests two points above whatever line of measurement? Pasquale links to Corey Robin. Is your scientist any more human that de Maistre’s executioner? Is he any more passive before whatever authority gives him permission to kill?

    Constitutional debate is debate over a the interpretation of a common text. It’s not that much different than a debate over the meaning of the Bible or any other work of fiction. That’s not science. The debate is how we come to an agreement over what we value as a group. Agreement is not truth.

    Here’s a discussion of something more egregious also at Balkanization.

    Ask people what they value and most start babbling incoherently.
    Ph.Ds do about as bad a job as anyone.

  11. Well, Seth, you’re providing us evidence that you’re something of an expert on incoherence.

  12. I read the diagnosis and addendum. Also this
    It seems to be legitimate, though maybe he had someone help write it.

    I understand why a conservative layman would come to the decision as the judges have. I don’t agree with it as I also do not agree with the death penalty.
    The bureaucratic language of the documents- cold, without affect- was depressing. If the author found him one notch higher he would have used the same language to sign off on his death.

  13. Something else I’d forgotten that is also Pasquale, also on “science”.
    I’ve never forgotten it, and I mean that as a compliment, but I’d forgotten that he wrote it.

    His discussion of the “research imperative” quotes from the passage below by Daniel Callahan.

    “Though unfamiliar to most scientists and the general public, the term expresses a cultural problem that caught my eye. It occurs in an article written by the late Protestant moral theologian Paul Ramsey in 1976 as part of a debate with a Jesuit theologian, Richard McCormick. McCormick argued that it ought to be morally acceptable to use children for nontherapeutic research, that is, for research with no direct benefit to the children themselves and in the absence of any informed consent. Referring to claims about the “necessity” of such research, Ramsey accused McCormick of falling prey to the “research imperative”, the view that the importance of research could overcome moral values.

    That was the last time I heard of the phrase for many years, but it informs important arguments about research that have surfaces with increasing force of late. It captures, for instance, the essence of what Joshua Lederberg, a Nobel laureate for his work on genetics and president emeritus of Rockefeller University once remarked to me: ‘The blood of those who will die if biomedical research is not pursued will be upon the hands of those who don’t do it.’ “

  14. Mari says:

    This is so wrong, what gives us the right to take life. We are no better than the person who took a life, may God forgive us.