Constitutional Law Criminal Law

Of Mice and Men and Death in Texas: SCOTUS to Review Use of “Lennie” Standard in Death Penalty Cases

In 2002, the Supreme Court of the United States in Atkins v. Virginia ruled that executing an intellectually disabled person was a violation of the Eighth Amendment to the Constitution which prohibits “cruel and unusual punishment.” Here’s what Justice John Paul Stevens wrote in his opinion:”Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” But the Court refused to define “mentally retarded” or “intellectually disabled” leaving it to the States to decide.

So when the first case wound its way to the Texas in 2004, the trial court ruled that a man with an IQ of 70 who met the definition for “intellectually disabled” used by the American Psychiatry Association should not receive the death penalty. It went up to the Texas Court of Appeals and landed on the desk of Judge Cathy Cochran to write the opinion, and she came up with a doozy. It seems Judge Cochran was a huge fan of John Steinbeck, having lived in Monterey, California for a spell and even above the Cannery Row building which became the title for one of Steinbeck’s novels. She said that the medical community’s opinion was a factor, but that it was always evolving and subject to change. She agreed with Supreme Court Justice Alito who has written that it should be left to juries to decided who is intellectually capable enough to be killed by the State. But she knew that SCOTUS wanted States to set the standard so she decide to invoke one of Steinbeck’s most famous characters – Lennie, the slow-witted farmhand in the classic novella Of Mice and Men. Published in 1937, it tells the story of George Milton and Lennie Small, two displaced migrant ranch workers and best friends who move from place to place in California in search of new job opportunities during the Great Depression in the United States. George is a clever, sharp man and Lennie is his dull-witted companion who is a gentle giant but occasionally harms the things he holds due to his strength and mental incapacity. I won’t spoil it in case you haven’t read it(and you should)but let’s just say it doesn’t end well for poor Lennie. Citing Lennie, Judge Cochran came up with seven factors a jury should use to determine if a person should be killed once it was already determined that they met the clinical definition of intellectually disabled. Here they are in plain English:

[1.] 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?
[2.] Has the person formulated plans and carried them through or is
his conduct impulsive?
[3.] Does his conduct show leadership or does it show that he is led
around by others?
[4.] Is his conduct in response to external stimuli rational and appropriate,
regardless of whether it is socially acceptable?
[5.] Does he respond coherently, rationally, and on point to oral or
written questions or do his responses wander from subject to
[6.] Can the person hide facts or lie effectively in his own or others’
[7.] Putting aside any heinousness or gruesomeness surrounding the
capital offense, did the commission of that offense require forethought,
planning, and complex execution of purpose?

Should fiction ever be how we  choose who we kill?
Should fiction ever be how we choose who we kill?
While Texas courts call these factors Briseno factors for the case in which Judge Cochran set them forth, they are better known as the “Lennie factors” or the “Lennie standard.” And Texas has regularly applied the Lennie Standard in ruling that intellectually disabled people could nevertheless be killed by the State. Three examples: (1)Texas killed Marvin Wilson in 2012. Wilson was a man who sucked his thumb and who couldn’t make change or use a phone book. His IQ was 61, but he had also held a job, married and had a child. Despite his low IQ the court system found that he should be executed using the Lennie test since he was able to hold a job and marry. An IQ level of 71 is defined as Borderline Intellectual Functioning and 61 rates as Mental Retardation. (2)Just last year Texas killed Robert Ladd, with an IQ of 67, whose last words were “It stings my arm, man” as the lethal injection entered his body. The court found he had sufficiently planned his assault to make him fit to die under the Lennie test. (3)Juan Lizcano had IQ scores ranging from 48 to 62 and had been removed from school at age 15 because he had not advanced past the sixth grade. He could not read a clock, dress himself appropriately or perform simple jobs. The state relied on the testimony of Lizcano’s ex-girlfriend and a used-car salesman who had sold Lizcano a car, both of whom stated that Lizcano did not seem that impaired to them. The jury voted to execute him.

Here’s a strange thing BTW: Lennie would have failed the Lennie test with flying colors. Lennie held a job, in fact he held several. He communicated easily with George and others. He was able to keep secrets.He tried to hide the body of his victim. He and George planned to buy a farm together and raise Lennie’s precious rabbits. And what of this twisted use of one of the greatest pieces of American fiction? Can you imagine what John Steinbeck would say about it? Well when his son Thomas learned of the Lennie standard he stated that his father was vehemently opposed to the death penalty adding “To judge anything based on a piece of fiction, I think, is a stretch. And I think it would’ve made my father extremely angry.The character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic.” It’s not just a stretch, its too subjective and unclear and adds to the arbitrariness of the application of the death penalty. Why choose a fictional formula over a medically accepted definition? As Brian Stull, Ladd’s attorney stated, “Instead of sticking to the standards set by science, they refer to a character in Of Mice and Men. [My] client’s fate should not have depended on a novella.”

There are deeper problems with the Lennie test. For one thing, they turn the SCOTUS decision in Atkins on its ear. The Lennie factors can undo almost any legal acknowledgment of intellectual disability, making Atkins essentially worthless in preventing a mentally disabled person who may not entirely understand what they’ve done from being killed by the State. Then just last year, the Supreme Court made a more narrow decision on the issue in Hall v. Florida, directly ruling that states have to actually stick to the clinical definition of intellectual disability when measuring who can and can’t be executed. However, this ruling has had virtually no apparent effect on how judges in Texas handle these cases as they continue to apply the Lennie standard as shown above.

Judge Elsa Alcala
Judge Elsa Alcala
So this fall, SCOTUS will decide the fate of the Lennie Standard and one Bobbie J. Moore, a resident of Texas’ crowded death row. Moore was convicted of the murder of a grocery clerk. At his trial, it was established that his IQ ranged from 57 to 70. In addition to the scientific proof, the defense showed that Moore cannot tell time; doesn’t know the days of the week; or the relationship between addition and subtraction. The State proved he knew how to mow lawns and play pool. The trial judge, applying the IQ tests primarily, ruled him too incompetent to be executed. The Appeals Court disagreed and chided the judge for using only the psychological tests and not the Lennie standards. It cited that Moore had worn a wig during his crime and had tried to hide his shotgun which showed forethought and planning. Judge Elsa Alcala, alone dissented. She stated, “The Lennie standard does not meet the requirements of the federal Constitution. I would set forth a standard that does not include any reference to a fictional character.” Thank you Judge Alcala for stating what should be obvious

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