There is hard science. There is soft science.  And then there are really heart-warming stories that seem to have some sort of connection to science, in a non-analytical sort of way.  Which of these do you suppose the Texas Court of Criminal Appeals prefers?

Via Danielle Citron* at  Concurring Opinions,

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.

Wilson’s life reads like a roadmap to mental retardation, failing seventh grade special education classes and finally dropping out of school in tenth.

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).  

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.

Stand back. Trahan is doing science.  Then came the prosecution’s case for death:

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.” 

After all, only the unretarded penis can find it’s way to a vagina.  So naturally for Texas, the prosecution prevailed.  The reasoning makes the manner in which  Georgia ignores the Supreme Court’s decision in Atkins v. Virginia seem not nearly as bizarrely unreasonable as it does standing alone:

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.

In other words, the CCA decided to base their test for mental retardation on a character in a novel instead of science. 

In the comments to Citron’s post, it was suggested that this was merely “line drawing” by the court, so that only the most severely retarded were saved from death, and that the ordinarily retarded who did not hold elected positions would still be subject to frying.  Oh no. This argument does not fly.

While the question of where along the spectrum of mental retardation the cut off should be may be subject to some debate, the Briseño factors have no place in the discussion.  These aren’t founded in anything, other than a darn fine book.  But it’s fiction.  It’s not the measure of human intelligence, or a scientific basis upon which a bunch of judges can rule.  Having read the book (or at least most of it), the judges of the Court of Criminal Appeals are not suddenly qualified to craft factors for a scientific or medical diagnosis.

One of the dirty little secrets of the law is that judges get to make decisions about things they don’t understand.  Take technology for instance.  Medical and scientific stuff as well.  It’s not that they don’t think they understand.  They attribute knowledge of all sorts of stuff to themselves, often after listening to cherry-picked experts who present their views as if no one could possibly differ.  Except all the other experts in the same field, who aren’t put on the stand.  Yet, the judge who hears it now believes she is imbued with such depth of knowledge as to rule on the validity or consequence of a scientific fact, and that ruling will be perpetuated by scientifically-challenged judges in perpetuity.

But at least those judges, misguided as they may be, have attempted to rely on something resembling a scientific foundation.  In Texas, they prefer something even more scarce than scientific knowledge: a Steinbeck novel.  The bottom line is that Lennie is safe from execution.  Just Lennie.

* Yes, that Danielle Citron. See Blind Squirrel Theory.