Can you explain that? I cannot. How can it be possible that the Eighth Amendment prohibits the execution of a mentally retarded man with a IQ of 59 but not a mentally retarded man with a IQ of 61? Alas, here we must turn to the other part of Atkins, what the execution of Wilson informs us now is the most important part of Atkins, the part that immediately undermined the scope of the remedy granted in the case. After all, in Atkins, didn't Justices Stevens, O'Connor, and Kennedy all sign on to this language?:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.

It was the last sentence which spelled doom last night for Marvin Wilson. Since 2002, those words have allowed states like Texas, and Georgia, to nurture and protect statutes and case law that directly contradict the spirit, if not the letter, of Atkins. For example, Georgia relies upon a statute which makes the mentally retarded inmate prove beyond a reasonable doubt that he warrants protection under Atkins, a burden no jury ever gets to weigh. Instead, prison doctors and state judges, the same folks who steered pre-Atkins law, get to decide when a condemned man has proven enough retardation to be spared.

And Texas? Less than two years after Atkins, Texas ginned up a legal standard known today as the "Briseno factors," adopted from a 2004 case styled Ex Parte Briseno. In that case, the Texas Court of Criminal Appeals, acknowledging that it was making new law, set forth these decidedly non-scientific factors for determining whether a condemned man's mental retardation was sufficient enough to warrant protection under Atkins:

Evidentiary factors that may be considered when making Atkins determination whether defendant is mentally retarded and therefore cannot be executed include: (1) whether those who knew defendant best during developmental stage, i.e., his family, friends, teachers, employers, and authorities, think he was mentally retarded at that time, and if so, whether they act in accordance with that determination; (2) whether defendant has formulated plans and carried them through, or whether his conduct is impulsive; (3) whether defendant's conduct shows leadership or shows he is led by others; (4) whether defendant's conduct in response to external stimuli is rational and appropriate, regardless of whether it is socially acceptable; (5) whether defendant responds coherently, rationally, and on point to oral or written questions, or whether his responses wander from subject to subject; (6) whether defendant can hide facts or lie effectively in his own or others' interests; and (7) putting aside any heinousness or gruesomeness surrounding the capital offense, whether commission of the offense required forethought, planning, and complex execution of purpose.

This was what Justice Stevens had meant in Atkins when he wrote about leaving "to the states" the means of enforcing the constitutional restriction against the execution of the mentally retarded. But then Texas went even further. Instead of enforcing the restriction of Atkins, the Texas courts wrote their way around the restriction. Even though Atkins himself had a "mild" case of mental retardation and was spared by the justices, Texas made it clear that there would be no such relief for other borderline cases:

[M]ost Texas citizens would agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution, 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? Put another way, is there a national or Texas consensus that all of those persons whom the mental health profession might diagnose as meeting the criteria for mental retardation are automatically less morally culpable than those who just barely miss meeting those criteria? Is there, and should there be, a "mental retardation" bright-line exemption from our state's maximum statutory punishment? As a court dealing with individual cases and litigants, we decline to answer that normative question without significantly greater assistance from the citizenry acting through its Legislature.

Got all that? In those sentences, Texas blew off Atkins. Six justices in Washington may have said that the Eighth Amendment protects even the mildly mentally retarded from execution. But Texas still wasn't ready or willing to grant such relief. Instead, the state charted its own path in Brisenos, and then dared the Supreme Court to come back around and render yet another ruling on the constitutionality of executing the mentally retarded. On Tuesday, Texas was rewarded for this defiant behavior.