Supreme Court Rules Texas Can't Use "Lennie Test" To Execute Mentally Disabled

Now the state can no longer use the Lennie Test to determine whether a mentally disabled person can be executed.
Now the state can no longer use the Lennie Test to determine whether a mentally disabled person can be executed.
Photo from Texas Department of Criminal Justice

More than a decade after the U.S. Supreme Court ruled that states cannot execute a mentally disabled person, the Supreme Court has nixed the Of Mice and Men standards that Texas has been using to determine whether or not a person is mentally fit to be executed.

Last fall, the Supreme Court heard the case of Bobby James Moore, a 57-year-old man who walked into a Houston convenience store with two other men and shot 75-year-old grocery store clerk James McCarble during a robbery. Moore has been on death row since 1980. Moore was 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 was still slated to be executed. In the novella, by John Steinbeck, the intellectually disabled character Lennie is summarily executed after he accidentally kills a woman.

On Tuesday, the Supremes ruled 5-3 that these standards cannot be used.

Justice Ruth Bader Ginsberg penned a blistering opinion on the case, in a decision joined by Justices Anthony Kennedy, Elena Kagan, Stephen Breyer and Sonia Sotomayor. Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented. 

The Supreme Court had left an opening for such an issue when justices made a broad decision on the issue back in 2002 with Atkins v. Virginia, as Ginsberg notes in her opinion. 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."

However, with that ruling the Supremes 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 stunner.

Cochran, a California native, drew on the works of John Steinbeck when she was sorting out how to apply the Supreme Court's Atkins ruling — specifically his novella, Of Mice and Men. In 2004 Cochran used the book as inspiration to create 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 — also known as the "Lennie Test" — basically mean a person who has tested as intellectually disabled can still be executed if he or she was able to tell a lie and remember to keep telling it, follow through enough to get an idea and act on it or talk coherently, or plan a crime. The test makes preventing the execution of a mentally disabled person almost impossible.

In Moore's case, a lower court in Texas had actually found him to be "intellectually disabled and constitutionally ineligible" for the death penalty, but the Texas Court of Criminal Appeals reversed this decision, as Ginsberg notes.

Instead of considering how Moore's life — years of childhood abuse, undiagnosed learning disorders, frequent elementary school transfers, repeated academic failure and a history of drug abuse — played into his intellectual disabilities, the appeals ruled that these factors were unrelated to his mental comprehension. The appeals court used a 23-year-old medical standard instead and found that, by that rule, Moore was not intellectually disabled.

Ginsberg dug into the CCA's use of the Briseño Factors calling these standards "an invention of the CCA untied
to any acknowledged source." She then sharply sums up Moore's life, as told to the state habeas court in a 2014 hearing on whether Moore qualified as intellectually disabled:

"At 13, Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition. Id. At school, because of his limited ability to read and write, Moore could not keep up with lessons. Often, he was separated from the rest of the class and told to draw pictures. Ibid. Moore’s father, teachers, and peers called him “stupid” for his slow reading and speech. After failing every subject in
the ninth grade, Moore dropped out of high school. Cast out of his home, he survived on the streets, eating from trash cans, even after two bouts of food poisoning."

Using up-to-date medical standards, the 2014 state habeas court reviewing the case found that Moore was intellectually disabled and thus could not be executed. If the CCA had been going by current medical standards, instead of cherry picking past standards, they would never have been able to find Moore competent enough for execution, she concludes.

Ginsberg points out that Texas uses current medical standards for other situations, including criminal cases, but doesn't use these standards for the death penalty. This, she argues, is nonsensical an unacceptable.

Roberts also found the Briseño Factors to be an "unacceptable method" of figuring out whether a person has adaptive deficits, but found the CCA had still done its due diligence in how it determined Moore's intellectual function level.

“The Court overturns the CCA’s conclusion that Moore failed to present sufficient evidence of both inadequate intellectual functioning and significant deficits in adaptive behavior without even considering ‘objective indicia of society’s standards’ reflected in the practices among the States,” Roberts observes in his dissent. “The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.” 

Now, Moore's case will go back to the CCA which will have to look again at the lower appeals court rulings to determine whether Moore should be considered intellectually disabled and thus someone who can't be executed. But this time around the CCA will have to do that considering sans the Lennie Test.


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