The good ol' lawmakers in Texas have outdone themselves: in 2004, Judge Cathy Cochran of the Texas Court of Criminal Appeals wrote that execution of Lennie Small, the mentally handicapped murderer from John Steinbeck's "Of Mice and Men" should set a legal precedent. It turns out that legitimizing execution with literature is kinda unconstitutional, as evidenced by the case of Bobby J. Moore, whose capital punishment for killing a grocery store clerk during a robbery in 1980 was recently upheld by the Texas Court of Criminal appeals using the so-called "Lennie standard" and is now being challenged. Adam Liptak has the story on the Lennie standard, its history and opponents, for the New York Times in partial below and in full 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.”
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court for criminal matters, went astray last year in upholding the death sentence of Bobby J. Moore based in part on outdated medical criteria and in part on the Lennie standard.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.”
Mr. Moore reached his teenage years without understanding how to tell time, the days of the week or the relationship between subtraction and addition. His I.Q. has been measured as high as 78 and as low as 57, averaging around 70. On the other hand, the psychologist testified, the young Bobby Moore had shown skill at mowing lawns and playing pool.
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.