Editor’s note: Texas courts have relied on ‘Of Mice and Men’ to define intellectual disability and sentence people to death instead of relying on science and medicine. Now the Supreme Court will hear the matter. More background is here.
“In 2002, the Supreme Court barred the execution of the intellectually disabled. But it gave states a lot of leeway to decide just who was, in the language of the day, ‘mentally retarded,'” as the New York Times is reporting.
“Texas took a creative approach, adopting what one judge there later called ‘the Lennie standard.’ That sounds like a reference to an august precedent, but it is not. The Lennie in question is Lennie Small, the dim, hulking farmhand in John Steinbeck’s ‘Of Mice and Men.’
“The Lennie in question is fictional.
“Still, Judge Cathy Cochran of the Texas Court of Criminal Appeals wrote in 2004 that Lennie should be a legal touchstone.
“’Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt’ from the death penalty, she wrote. ‘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?’
“Judge Cochran, who later said she had reread ‘all of Steinbeck’ in the 1960s while living above Cannery Row in Monterey, Calif., listed seven factors that could spare someone like Lennie, whose rash killing of a young woman was seemingly accidental.
“For instance: ‘Has the person formulated plans and carried them through or is his conduct impulsive?’
“And: ‘Can the person hide facts or lie effectively?’
“This fall, in Moore v. Texas, No. 15-797, the United States Supreme Court will consider whether the Court of Criminal Appeals, Texas’ highest court for criminal matters, went astray last year in upholding the death sentence of Bobby J. Moore based in part on outdated medical criteria and in part on the Lennie standard.
“Mr. Moore killed James McCarble, a 70-year-old grocery clerk, during a robbery in 1980 in Houston.
“No one disputes that Mr. Moore is at least mentally challenged or, as a psychologist testifying for the prosecution put it at a 2014 hearing, that he most likely ‘suffers from borderline intellectual functioning.’
“The state judge who heard this evidence, relying on current medical standards on intellectual disability, concluded that executing Mr. Moore would violate the Eighth Amendment’s ban on cruel and unusual punishment.
“But the Court of Criminal Appeals reversed the ruling, saying the judge had made a mistake in ’employing the definition of intellectual disability presently used.’
“Under medical standards from 1992, endorsed in Judge Cochran’s 2004 opinion, Mr. Moore was not intellectually disabled, the appeals court said.”
The rest of the article is here.