The death penalty isn't perfect, but then neither are we. The botched execution last month in Oklahoma has raised legitimate questions about the secret sauce Texas uses on death row, and a lot of Texans still haven't gotten over the state—that is, us—executing Cameron Todd Willingham based on unscientific and discredited folk tales about arson. The Oklahoma incident in particular has caused many to re-examine the death penalty's use in Texas, but the problem isn't the process but the people who carry it out.
There is no better way to show how people are the downfall of the death penalty than explaining how we decide whether someone is too intellectually disabled to execute. The story sounds like a caricature of yee-haw conservatism. The goal—executing only those with the intellectual capacity to be responsible—sounds great, but when you get specific you understand why they say the Devil is in the details.
To give you an idea how far behind the courts are in dealing with intellectual disability like grownups, they still use the offensive term "mental retardation." That's the phrase the Supreme Court used in its 2002 Atkins v. Virginia decision that held executing the intellectually disabled violated the Eighth Amendment ban on cruel and unusual punishment.
Instead of offering a "thou shalt not" bright line, the Supreme Court suggested that an IQ south of "approximately 70" constituted "mental retardation" but otherwise left it up to the states. And as events subsequently proved, leaving it up to Texas officials to define intellectual disability might have had the perverse effect of seeking an expert opinion.
Unlike most states that used the clinical definition of intellectual disability, Texas officials went their own way, reasoning perhaps that in this case it knew best. And as I'm writing this, I want to emphasize that I am not making this up. When you just describe what really happens in Texas it invariably comes out like Kafka killed the bottle and ate the worm. Exaggeration is seldom necessary.
In 2004, the then-all Republican Texas Court of Criminal Appeals, needing to come up with a standard for "mental retardation" in a death penalty appeal, came up with the "Briseno factors," a series of seven questions into the upbringing and mental health of the convict. In her opinion outlining the "Briseno factors," Justice Cathy Cochran, a George W. Bush appointee, failed to cite a single scientific basis or clinical application as the source of these questions. No scientific body recognizes "Briseno factors" as legitimate. The scientific and mental health communities regard the "Briseno factors" as something that belongs in a different section of the library.
Actually, it's the fiction section. Justice Cochran based "Briseno factors" on Lennie Small, the sweet, dumb, and violent character from John Steinbeck's Of Mice and Men.
"Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt," wrote Justice Cochran. "But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"
Perhaps the most offensive part of the "Brisenno factors" is Justice Cochran's reference to popular opinion. The death penalty is indeed popular in Texas, but Lady Justice wears a blindfold to ensure objectivity. Those who would hide behind popular opinion in making moral choices do not deserve contempt but compassion. Who wants to die with that on their record?
The clear implication of this decision is that Texas didn't want to let all the intellectually disabled inmates off death row. In this Justice Cochran succeeded. In 2012, Texas used the "Briseno factors" to justify executing a man with an IQ of 61.
When making decisions about who rots in prison and who gets the needle, Texas can do better than measuring flesh-and-blood convicts against a fictional character. Some say there was only one perfect person, but we executed Him. In executing the intellectually disabled, Texas is murdering those who know not what they do. I wish we were better than that.