Tuesday, July 31, 2012

Another Bizarre and Troubling Texas Execution by August 7?

Frank Pasquale

As Danielle Citron observes at Concurring Opinions today, Texas has become the United States' "most extreme outlier on all issues pertaining to capital sentencing."  In yet another bizarre twist, Texas appears ready to ignore the report of a "board certified neuropsychologist with 22 years of clinical experience" in favor of a seat-of-the-pants characterization of a death row inmate's cognitive capacity.  The case involves "Marvin Wilson, a man who received [an IQ] score placing him below the first percentile of human intelligence."  As Citron notes: 
Texas . . . has translated the Supreme Court’s categorical ban on executing offenders with mental retardation 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.  
Given Steinbeck's broader messages about social justice, I think he'd find this appropriation of his work deeply troubling.  It reminds me of Balkin/Levinson's observations on law & humanities in this article

Holmes was a notably well-read man, but we have little doubt that he would have scoffed at any idea that reading literature or engaging in the humanities would have the edificatory effect that Learned Hand seemed to advocate. He probably would have insisted that acquaintance with Homer and Shakespeare would not have changed what ambitious young lawyers in the Office of Legal Counsel wrote to please those in power. Even a torturer can love a sonnet. . . . 
There are probably more than a few cultured persons among the Texas officials blocking the Medicaid expansion, or overheating its prisoners.  The best that can be said for them is that they, like de Maistre's executioner, are integral to "bond[s] of human association" that rely on collective enthusiasms to impose harm on others.   In any event, kudos to Lee Kovarsky for his tireless advocacy for Mr. Wilson. 

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