Marvin Wilson, 54, is scheduled to be executed on Tuesday for the 1992 killing of a police drug informant in Beaumont. Although repeatedly-- and uncontestedly-- diagnosed as mentally retarded, and although the Supreme Court's 2002 Atkins v. Virginia ruling prohibits the execution of such individuals, Texas is planning on carrying out Wilson's death sentence because the state has simply redefined mental retardation based, shockingly, on a fictional character from a John Steinbeck novel. Because Atkins v. Virginia permitted states a limited amount of procedural discretion, Texas devised a set of seven criteria-- the Briseno factors-- to determine which individuals convicted of capital offenses could still be executed despite their severe disabilities. In doing so, Texas ignored the overwhelming scientific and clinical consensus, as embodied by tests administered by the American Association on Intellectual and Developmental Disabilities, on what constitutes mental retardation.

Incredibly, the Briseno factors are based on the character Lennie Small from John Steinbeck's classic novel "Of Mice and Men." "Lennie's personality is like that of a child," says a Cliffs Notes character synopsis. "He is innocent and mentally handicapped with no ability to understand abstract concepts like death... he does not mean to do the things that get him into trouble, and once he does get into trouble, he has no conscience to define his actions in terms of guilt."

The Briseno factors posit that "most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt" from execution.

As The Guardian points out, "by implication anyone less impaired than [Lennie] should have no constitutional protection." Indeed, critics claim that Texas has made it nearly impossible for mentally retarded individuals to be spared from execution. Wilson's IQ was determined to be 61. That places him in the very last percentile of the overall population, some 9 points below the retardation threshold of 70. The average IQ, by definition, is 100. It was also determined that Wilson's reading and writing level is that of a typical seven-year-old child.

He cannot cut grass or use a ladder on his own or dress himself properly with matching socks and a button-up shirt. He is utterly incapable of managing his own money or directing his own life. But the state of Texas, while not contesting Wilson's retardation, did not conduct a single cognitive assessment. No evidence was cited, nor was there any testimony requested. And despite Atkins v. Virginia, Wilson will be put to death tomorrow if the Supreme Court does not rule favorably on his petition that claims the Briseno process violates the high court's own ruling. "If Wilson is executed on Tuesday, Texas will be rendering the US Supreme Court's Eighth Amendment prohibition on the execution of mentally retarded prisoners a prohibition in name only," Lee Kovarsky, Wilson's attorney, told the Guardian. It wouldn't be the first time Texas has executed a mentally retarded prisoner in seemingly open defiance of the Supreme Court.

Last June, Milton Mathis, who scored a 62 on the Texas Department of Corrections' own IQ exam, was killed by lethal injection for murdering two people in Houston in 1998. But if executed, Wilson will have the dubious distinction of being the Atkins claimant with the lowest IQ to be put to death.