Here’s a riddle: What do a death-row prisoner and a John Steinbeck novel have to do with one another? Answer: Nothing, unless the death-row prisoner is in Texas and has intellectual disability. Under Texas law, a defendant’s life may hinge on how closely his intellectual disability resembles that of the hulking, obviously disabled, farmhand Lennie Small from Steinbeck’s Of Mice and Men. That’s because only in Texas will you find the “Lennie standard,” the set of criteria the state uses to determine that an individual has intellectual disability and is therefore exempt from facing the death penalty.
Whether Texas can execute Bobby Moore, based on the “Lennie standard,” is a question the U.S. Supreme Court will address in arguments it will hear on November 29.
If this sounds bizarre, you have read correctly so far. Yes, it is like your insurance company denying coverage for cancer because the insurance executive has seen characters on “General Hospital” recover with little treatment.
So it’s worth delving into how Texas came to rely on its “Lennie standard,” what its application means for Moore, and how his case offers an opportunity for the Supreme Court to take the bizarre out of what ought to be a scientific and solemn process.
Texas sowed the seeds of this controversy after the 2002 U.S. Supreme Court decision Atkins v. Virginia, which held that the U.S. Constitution’s Eighth Amendment bars the government from executing persons with intellectual disability because to do so would be cruel and unusual punishment. To determine whether a person has intellectual disability, the court referred to the scientifically established diagnostic standards shared by the medical community.
Two years after Atkins, the Texas Court of Criminal Appeals put a different spin on the case. In Ex parte Briseno, the court signaled that Atkins would have limited application in Texas. The task under Briseno was not simply to identify and exempt from execution those persons with intellectual disability. Rather, Texas courts would determine “that level and degree of [intellectual disability] at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” So, based on Briseno, it’s not enough to have intellectual disability to escape execution in Texas. Instead, a person must be disabled enough that Texas citizens would agree he should be spared.
But the protections in the U.S. Constitution are required to be upheld by state officials. No state court can lawfully strip Eighth Amendment protections from its citizens, although that appears to be the intent of Texas courts bent on limiting those protections to only a subset of persons with intellectual disability.
And that’s where Lennie Small comes in. In the Briseno opinion, the Texas court critiqued the established medical standards the Atkins ruling used to determine intellectual disability as inherently subjective and therefore unsatisfactory. Reaching instead to fiction, the court cited Lennie as an example of the type of disabled person Texans would agree should not be executed. The court then came up with a list of factors that would determine whether a prisoner has sufficient intellectual disability and thereby is ineligible for execution. These factors have nothing to do with medicine and everything to do with stereotypes about intellectual disability. For example, the list includes questions about whether the prisoner could lie persuasively, whether he could be a leader, whether his crime appeared to have required planning, and whether his friends or relatives thought he was disabled as a child.
Our brief in Bobby Moore’s case illustrates how these stereotypical factors are drawn directly from Lennie’s character. Lennie is a follower, not a leader; he was caught in every one of his lies and fibs; and his crime was completely spontaneous. But you needn’t take our word for it. The author of the Briseno opinion, in which Lennie first became the Texas icon of intellectual disability, was Judge Cathy Cochran. She is a Steinbeck admirer and admitted to thinking that Lennie was the type of person Atkins meant to protect when she crafted the opinion.
The Briseno decision has long been criticized for elevating stereotype over science and a judge’s whim’s over the Constitution. When Bobby Moore’s claim of intellectual disability reached a Texas trial court in 2014, the court did not apply the Lennie standard. Instead, it heard expert testimony, considered the current medical standards, found Moore had intellectual disability, and ruled that he could not be executed. Around the same time, the U.S. Supreme Court struck down a Florida procedure requiring judges to summarily deny claims of intellectual disability to any prisoner whose IQ was above 70. The court in Hall v. Florida held that intellectual disability is more than a number and that the medical standards required a more searching inquiry.
Despite the new Hall ruling, the Texas Court of Criminal Appeals rejected the trial court’s decision finding that Moore had intellectual disability. The appeals court held that the trial court “erred” by using current medical standards, applied the Lennie factors, found Moore did not match the stereotypical version of intellectual disability, and therefore denied his claim. As a result of this decision, Texas is now the only state to prohibit the use of current medical standards on intellectual disability in determining whether a person may be executed.
John Steinbeck’s family has already shunned Texas’s use of a Steinbeck character to justify denying relief to death-row prisoners with intellectual disability. In Bobby Moore’s case, the U.S. Supreme Court has an opportunity to do the same and to reaffirm the protections of the Eighth Amendment.