Supreme Court Considers John Steinbeck And ‘Of Mice And Men’

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Kevin Daley Supreme Court correspondent
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The state courts in Texas apply a test named for clumsy giant Lennie Small in “Of Mice and Men” to determine whether a convict is mentally fit for capital punishment.

The U.S. Supreme Court barred the execution of the intellectually disabled in Atkins v. Virginia in 2002. A six-justice majority concluded the practice was cruel and unusual and in violation of the Eighth Amendment. This ruling begat differing standards across the nation’s courts for assessing mental disability. A 2004 case, Ex parte Briseno, established the “Lennie standard” in Texas (or the “Briseno factors” in the parlance of the courts,) wherein the intellectual ability of individuals committed of capital crimes is assessed against characteristics of author John Steinbeck’s Lennie. The court asks:

Did those who knew the person best during the developmental stage-his family, friends, teachers, employers, authorities-think he was mentally retarded at that time, and, if so, act in accordance with that determination?

Has the person formulated plans and carried them through or is his conduct impulsive?

Does his conduct show leadership or does it show that he is led around by others?

Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

Can the person hide facts or lie effectively in his own or others’ interests?

Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

Enter Bobby James Moore, a Texas inmate sentenced to death for his role in a grocery store robbery which resulted in the shooting death of a clerk. Moore’s lawyers argue that he is intellectually disabled, noting that his IQ has registered as low as 57 (and as high as 78.) He struggled with basic addition and subtraction well into his teenage years, and couldn’t tell time until his adolescence. Following his conviction, a trial court concluded that Moore was mentally disabled, and could not be executed. The Texas Court of Criminal Appeals vacated that ruling, using the Lennie standard to determine that Moore could be executed. (RELATED: Judge Grants Dylann Roof’s Request To Represent Himself In Court)

Moore’s lawyers appealed the ruling to the U.S. Supreme Court, arguing that the prongs of the Lennie test are anecdotal factors not included in a medically-sound diagnostic framework. A 2014 ruling, Hall v. Florida, further developed the Atkins decision by requiring courts to rely on an accurate and updated diagnostic matrix during such proceedings. In his brief, Moore’s lawyers write:

The Briseno factors are unapologetically non-clinical — and indeed they are anti-clinical. The Briseno factors are rooted in lay misconceptions of intellectual disability; they are erroneously derived from the literary character Lennie; and they are based, at least in part, on the fundamental misconception that only a subset of those diagnosed as intellectually disabled may be excluded from execution. 

These factors, they argue, imperil Moore and other mentally disabled inmates who could be sentenced to death despite obvious intellectual incapacity.

Texas counters that the Briseno factors are not the primary test for assessing mental disability. Instead, they argue, the Lennie test is a nonessential recourse a court may use in addition to its principal, three pronged test for intellectual disability. They further argue the Briseno factors were only used to uphold an alternative rationale for sanctioning Moore’s execution. In their view, axing use of the Lennie test would still preserve the appeals court’s first-line finding that Moore should be executed.

The justices are left to decide whether the courts may use non-clinical or outdated medical information in assessing whether a person is intellectually disabled, and therefore protected from capital punishment.

The Court will hear arguments Tuesday morning. Moore is represented by Clifford Sloan of Skadden, while Texas is represented by Solicitor General Scott Keller. This case marks the second time Keller will appear before the justices to defend Texas’s prerogative to execute a prisoner this term.

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