Staying with my Texas theme this morning, the state is about to execute a mentally retarded man today, despite a Supreme Court prohibition on the practice which they managed to get around:

In 2002 the Supreme Court ruled that executing the mentally retarded violated the Eighth Amendment. The Court left it up to individual states to decide on what procedures to use when determining whether defendants were in fact mentally retarded, or were falsely claiming to be so. (In a characteristically brutal dissent Justice Scalia argued that the inconvenience of sorting out false claims from valid ones was a good reason for not barring such executions.)

Subsequently, almost every capital punishment state that didn’t already have a statute dealing with the issue passed a law telling courts how to handle capital cases involving a claim of mental retardation. But the Texas legislature was too busy with such things as passing laws requiring students to pledge allegiance to the flags of the U.S. and Texas and spend a minute in “silent reflection” (right-wing code for prayer) to ever get around to dealing with the matter.

So it was left to the Texas courts to decide how to interpret the Supreme Court’s directive. The courts proceeded to formulate an extremely vague and manipulable test, which as a practical matter left it up to juries and judges to decide on a case by case basis if a defendant was, as it were, retarded enough to get the benefit of Eighth Amendment protection from execution.

The defendant in question, Marvin Wilson, clearly has a mental deficiency; the uncontested evidence shows that his IQ is below the first percentile, with the mental capacity of a six year-old. And yet the courts in Texas have ruled that his mental retardation doesn’t rise to the level where he should be exempt from the death penalty. Given this case, it’s unclear where Texas jurists would ever draw the line.

Notwithstanding the fact that Wilson may not have been present at the murder of which he stands convicted, his execution almost certainly violates the Supreme Court’s ruling. Yet they have not stepped in to stop the execution yet. They have not acted on a petition from Wilson’s lawyers.

The case has generated substantial publicity, but unless the Supreme Court intervenes, it will not matter. And a man with the mental capacity of a six year will be killed by the state of Texas today.

UPDATE: I just received a statement from the son of John Steinbeck on the imminent execution of Marvin Wilson. Apparently Texas cited Lennie from Of Mice and Men in one of their briefs justifying the execution of the retarded:

“On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e, Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way.”