US Law – Only Texas could use a fictional character to judge mental capacity

US Law – Only Texas could use a fictional character to judge mental capacity.

When the American Supreme Court ruled in 2004 that intellectually disabled people could no longer be subject to the death penalty, it seemed that a practice which carried a particularly toxic risk of monstrous injustice had finally been done away with. But once again the issue has raised its ugly head, this time over the definition of who qualifies as intellectually disabled. Bizarrely, in a Texas court room, the fictional character of Lennie in John Steinbeck’s  1937 novel Of Mice and Men has been used to judge mental capacity. Bryony A. Jarrett explains

If the court is throwing the book at you in Texas, fortunately it will no longer be John Steinbeck’s Of Mice and Men. First used in the 2004 court ruling in Ex parte Briseno to determine whether the defendant was intellectually disabled by comparing him to the character Lennie, the novel was brought up again in the 2012 case of Wilson v Texas. This trend was put to an end by the March 28th 2017 U.S. Supreme Court ruling of Moore v. Texas.

Not every court in the country was using the Steinbeck novel as a tool of measurement prior to this ruling. In 2004 the U.S. Supreme Court ruled in Atkins v. Virginia that intellectually disabled persons cannot be given the death penalty, as that would be considered “cruel and unusual punishment” as defined by the Eighth Amendment. However, they left it up to the states to determine intellectual disability, although they did stipulate that a finding of intellectual disability would require proof of three things:

  • ‘subaverage intellectual functioning’, meaning low I.Q. scores;
  • a lack of fundamental social and practical skills;
  • and the presence of both conditions before age 18.

The court said I.Q. scores under ‘approximately 70’ typically indicated disability. (1)

In 2004 a Texas appeals court decided that a work of fiction was an adequate standard for measuring intellectual disability when they upheld the state’s right to execute an intellectually disabled man named Jose Garcia Briseno, using the reasoning that:

Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. 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? (2)


In 2012, when another intellectually disabled Texan Wilson was given the death penalty, his lawyers appealed to the US Supreme Court on the basis that Texas uses criteria to determine whether someone can be fairly classified as intellectually disabled that ‘lack any scientific foundation’ as they had used the 2004 Briseno case, invoking Of Mice and Men once again, in their sentencing of Mr Wilson. Unfortunately for Mr. Wilson, the Supreme Court rejected his appeal and he was executed in August 2012 (3).

That same fate was recently avoided by Bobby James Moore, when on March 28th the US Supreme Court determined that facts, not fiction, must be used to set the standards for intellectual disability in a court of law. Mr. Moore was convicted and sentenced to death in 1980 for killing an elderly store clerk during a botched robbery in Houston, Texas. His attorneys had challenged his death sentence in the Texas Court of Criminal Appeals (TCCA), claiming that under the 2002 Supreme Court ruling of Atkins v. Virginia he was exempt from execution due to being intellectually disabled. The TCCA rejected the challenge and it was their basis for rejection that the United States Supreme Court recently found wanting.

Instead of relying on the consensus of the current medical community, the TCCA based their decision once again on Briseno, not for the Steinbeck reference, but for the medical standards used to measure intellectual disability, standards that they said did not apply to Mr Moore. These standards were from a 1992 edition of a medical manual that at the time of Mr Moore’s trial was considered outdated and had been modernised with a more current edition.

Moore’s execution was avoided when the US Supreme Court deemed these standards to be unacceptable. Writing for the majority in the 5-to-3 decision, Justice Ruth Bader Ginsburg said Texas had failed to keep up with current medical consensus, relied too heavily on I.Q. scores and took account of factors rooted in stereotypes. Justice Ginsberg said: “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.” (4)

In the era of ‘alternative facts’, a court ruling like this not only supports the scientific and medical communities but also the marginalised communities who have been at the mercy of stereotypes and fiction for too long.


  1. Liptak, Adam “Supreme Court to Hear Death Penalty Cases”. The New York Times, June 6, 2016.

For ruling see:

  1. Court of Criminal Appeals of Texas. Ex parte Jose Garcia Briseno, Applicant.
  2. Mackey, Robert. Steinbeck Family Outraged that Texas judge citied Of Mice and Men in execution ruling, The New York Times, August 8, 2012
  3. Liptak, Adam, Texas used wrong standard in death penalty cases, justices rule, The New York Times, March 28, 2017.

Bryony A. Jarrett works at the law firm of Harmon, Curran, Spielberg, + Eisenberg in Washington DC. Any views expressed in this article are her own.