Texas is hours away from executing the second intellectually disabled prisoner in the US this week, in what lawyers say is a clear violation of the constitutional protection against cruel and unusual punishment.
The convicted murderer Robert Ladd, 57, will be killed with a lethal injection at 6pm Central Time on Thursday barring last-minute action by the US supreme court, where the case now resides. He was first found to have what was then called “mental retardation” when he was 13, and has repeatedly been diagnosed with the condition throughout his life.
In 2002, the supreme court banned executions for mentally impaired prisoners under the eighth amendment of the constitution, which prohibits cruel and unusual punishment. But Texas says it is not bound by this ruling because it claims Ladd does not conform to the state’s unique, and bizarre, method of defining “mental retardation”.
Under what are known as “Briseno Factors”, the state sets out the profile of an individual whom ordinary Texans would agree was intellectually disabled. It points to Lennie Small, the lumbering and childlike character in John Steinbeck’s 1937 novel Of Mice and Men, identifying him as the legal yardstick.
Ladd’s lawyer, Brian Stull of the American Civil Liberties Union, said that his client’s fate should not “depend on a novella. Instead of sticking to the standards set by science, they refer to a character in Of Mice and Men.”
Ladd was convicted of the 1996 murder of Vicki Ann Garner in east Texas. Previously, he had served 16 years of a 40-year prison sentence for murdering another woman and setting her Dallas apartment on fire, killing her two children.
Ladd would be the second intellectually impaired prisoner to be executed this week, should the supreme court allow the procedure to go ahead. On Tuesday, Georgia executed Warren Hill , 54, a convicted murderer who had been found to be mentally disabled by every medical expert who had examined him.
Stull said that in light of the earlier Hill execution, “if Robert Ladd is put to death tonight, it will become clearer than ever that we are in the midst of a complete systems failure in terms of honouring the constitutional protections the supreme court ordered for intellectually disabled people.”
On Wednesday, the supreme court ordered a stay of execution in three pending cases in Oklahoma as a result of the court’s earlier decision to consider the use of the sedative midazolam in lethal injections . Midazolam has been linked to a spate of recent botched executions in Oklahoma, Arizona, Florida and Ohio.
The review does not touch upon Texas’s procedures, as the state has chosen to use pentobarbital, a barbiturate it is believed to have acquired from a relatively unregulated compounding pharmacy.
