SUPREME CPOURT TO VET TEXAS ‘LENNIE TEST’ FOR EXECUTING MENTALLY DISABLED INMATES

By Dianna Wray

Houston Press
November 29, 2016

More than a decade ago the U.S. Supreme Court declared executing mentally disabled people unconstitutional. However, the court didn't define what standards should be used to determine what level of disability precludes execution, so Texas came up with its own standards, derived from John Steinbeck's Of Mice and Men. Go figure that these "standards," based on a fictional character and no scientific evidence, have turned out to be problematic at best. And now the Supreme Court is looking at the consequences.

On Tuesday the Supremes will hear the case of Bobby James Moore, a 57-year-old man who shot gas station attendant James McCarble in Houston and has been on death row since 1980. Moore is challenging whether or not the Of Mice and Men standards should be used to determine if he, or anyone, is mentally competent enough to be executed. Moore's IQ scores have ranged between 50 and 70 (a person with an IQ of 70 or below is generally classified as mentally disabled) but he is still marked for execution.

The Supreme Court left an opening for such an issue when the justices made a broad decision on the issue back in 2002 with Atkins v. Virginia. The high court ruled that executing an intellectually disabled person for murder was a violation of the Eighth Amendment, which prohibits "cruel and unusual punishment."

Here's what Justice John Paul Stevens wrote in his opinion (and yes, they used the term "retarded" back then):

"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."

However, the Supreme Court left the actual definition of what constitutes intellectually disabled up to the states. In Texas, after the 2003 state Legislature failed to lay out the rules that would clearly prevent the execution of intellectually disabled people convicted of murder, it fell to the Texas Court of Criminal Appeals to pin down the requirements. Judge Cathy Cochran was the one to write the opinion, and she came up with a real corker.

Cochran was born in California, and years ago she and her husband were living in Monterrey, near Cannery Row, the area Steinbeck immortalized. Inspired by her location, Cochran read his books, including Of Mice and Men, the story of George, a vagabond ranch hand, and his mentally disabled friend, Lennie. George struggles throughout the novel to keep Lennie out of trouble. This leads to an accidental murder and George finds Lennie hiding from a vigilante group. George knows the men will find Lennie and execute him, so he kills Lennie himself. It's a brutal, tragic and incredibly moving work of fiction, and it turns out the story stayed with Cochran, though probably not in the way Steinbeck would have intended.

She landed on the Court of Criminal Appeals in 2001, and in 2004 she was working out how to apply the Supreme Court's Atkins ruling in Texas and found herself thinking of Lennie, according to Life of the Law. Except she somehow decided that Texans would not want to exempt every convicted murderer with a low IQ from execution. In a workaround that essentially undid the Atkins decision, Cochran came up with the Briseño Factors, a set of seven flexible guidelines to help Texas courts determine whether or not someone is mentally competent enough to be executed.

The Briseño Factors essentially mean a person who has tested as intellectually disabled but is still able to get an idea and follow through on it, or is not clearly being manipulated by others, or can handle a social situation without drooling, or is able to tell a lie and remember the lie long enough to keep telling it is mentally competent enough for execution. The same goes if he or she can talk coherently and was able to actually plan the crime in question. In practice these standards — also known as the Lennie test — make it almost impossible to stop the state from executing a mentally incompetent person, even if that person doesn't entirely understand what he or she is being punished for, as we've previously noted.

There was an outcry against these standards last year when Robert Ladd, a man with an IQ score of 67, was executed for the brutal 1996 murder of Vicki Ann Garner in Dallas. As with so many of these cases, the question was never about Ladd's guilt, but about whether it was right to execute someone who meets the clinical definition of mentally disabled. Ladd's lawyers made last-ditch appeals to the Supreme Court, but the justices declined to intervene.

But now the high court has agreed to hear Moore's case and look at the standards that determined whether he was intellectually disabled enough to be cognizant of the crime he is to be executed for. Moore's lawyers argued a lower court in Texas had found Moore was "intellectually disabled and constitutionally ineligible" for the death penalty, but the Texas Court of Criminal Appeals reversed this decision. The appeals court ruled that a 23-year-old standard applied instead and found that, by that standard, Moore was not intellectually disabled.

Justices will hear Moore's case today and issue their opinion sometime next spring. The Supremes are still short a justice (they've been down one since Justice Antonin Scalia died in February), but it's hard to tell how the balance of the eight justices currently on the court will influence how they decide this case. So we'll just have to wait and see whether the Lennie test passes muster with the high court.