Steinbeck's 'Of Mice and Men' and capital punishment

In 2002, the Supreme Court ruled that executing someone with an intellectual disability is a “cruel and unusual punishment,” prohibited by the Eighth Amendment.

Psychologists typically diagnose intellectual disability with tests of a person’s IQ and “adaptive behavior,” meaning the interpersonal and practical skills needed for everyday life. The tests examine a broad range of abilities, including whether the person can clothe and feed themselves, handle money, read and write, and whether they are gullible and easily led. But in Moore’s case, the state of Texas instead relied in part on a stereotype based — literally — on a tragic character from John Steinbeck’s Of Mice and Men, wrote Peter Aldhous at Buzzfeed.com.

In 2004, when ruling on the case of José García Briseño, convicted of murdering a sheriff, the Texas Court of Criminal Appeals took inspiration from a character in Of Mice and Men: Lennie Small, a lumbering migrant worker who understands neither the world around him nor his own strength, and ends up killing a woman who flirts with him.

“Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt,” Judge Cathy Cochran wrote in her opinion. But she questioned whether the scientific definitions of “mental retardation” should apply to the death penalty.

Calling the measurement of adaptive behavior “exceedingly subjective,” Cochran proposed seven questions, now called the “Briseño factors,” to help judge whether a convicted killer has the intellectual capacity to justify facing the death penalty. She did not specify exactly how they should be used.

In 2014, in an opinion written by Justice Anthony Kennedy, the court ruled that Florida was wrong to use a rigid cutoff of 70 IQ points or less. Today’s IQ tests, which are set so that 100 points is the average score, have a measurement error of three points or more. This means that any score should be considered as a range, not an absolute value. After that court decision, Florida reduced the sentence of convicted killer Freddie Lee Hall, who had scored 71 on one IQ test, from death to life in prison.

Now, the U.S. Supreme Court will hear the case of Booby James Moore, asking the justices to consider once again how to define intellectual disability.

In April 1980, 20-year-old Moore and two other men attempted to rob the Birdsall Super Market in Houston. Moore carried a shotgun, and one of his accomplices had a pistol. As an accomplice opened a bag to fill with money, Moore, wearing a wig and sunglasses, pointed his gun at two store clerks. When one of the clerks shouted, Moore shot the other in the head, killing him instantly.

Moore has been on death row for 36 years. His guilt is not in question, but his lawyers say he does not have the mental capacity to justify executing him for his crime.

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