In executing two mentally retarded prisoners and attempting to execute a third, Texas thumbed its nose at the U.S. Supreme Court and sunk to the moral level of state-sponsored barbarism.
In 2017, and again this year, the Supreme Court struck down this state's standards for determining mental disability for death row prisoners, and using the alternative of life imprisonment. Not before, however, Texas executed Marvin Wilson, 54, in 2012, with an IQ of 61; and Robert Ladd, 57, in 2015, with an IQ of 67. (An IQ of 70 is typically one threshold for defining mental disability, though not the only one.)
In February, the U.S. Supreme Court blocked the execution of a third Texas death row prisoner, Bobby J. Moore, who shot and killed a store clerk in a 1980 robbery attempt.
Justices said Moore had an “intellectual disability” and called this state's unscientific “Briseno” standards an unconstitutional means of determining Moore's mental fitness.
In 2002, the high court ruled that executing people with “mental retardation” violates the eighth amendment's ban on cruel and unusual punishment.
Justices left it to states to define mental disability and determine the condition. Unfortunately, the Texas Criminal Court of Appeals and Attorney General Ken Paxton failed to do so in a constitutional manner.
To prevent more unlawful executions, as well as excessive legal costs in death row appeals, Texas legislators should establish statutory standards for mental disability. Unlike the Briseno factors, the criteria for establishing mental disability ought to align with medical science, research, and clinical practice.
Without new constitutional standards for mental disability, the U.S. Supreme Court's two recent decisions, striking down the Briseno standards, leave the state without significant precedents. With Texas leading the nation in executions and one more state – New Hampshire – abolishing the death penalty Thursday, the Lone Star State could come under increasing legal scrutiny.
Created by the Texas Court of Criminal Appeals in 2004, the Briseno factors are, almost literally, fictitious, referencing Lennie Small, a childlike character who unintentionally killed a woman, from John Steinbeck's 1937 novella, Of Mice and Men.
Briseno poses non-clinical questions, such as whether a person can effectively lie. Most six-year-olds can do that. Ironically, the test makes an important point: Executing the mentally disabled is the moral equivalent of executing children, which the Supreme Court also has banned.
No doubt, the mentally disabled, like children and fully functioning adults, can commit heinous crimes that demand justice. Wilson shot to death a police informant; Ladd strangled a woman. Their impaired ability to think and reason, however, makes life in prison --not death – the appropriate punishment to meet the exigencies of justice, public safety, and the U.S. Constitution.
Other death penalty states use constitutional definitions of intellectual disability. Enacting medical and scientific standards to measure it would ensure Texas does, too.