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.
In other words, Texas is asking prosecutors, juries, and judges to engage in an act of literary criticism in order to decide whether to kill someone.
In a recent review of The Secret Life of Stories, Michael Bérubé’s recent book on narrative deployments of disability in literature, I wrote:
Throughout, Jamie Bérubé is present. Jamie’s discovery of what stories are opens the book. Jamie’s continued contemplation of stories reappears throughout, either explicitly or implicitly. In the final pages, I suspect he is especially present during a sober discussion of Lennie Small, the disabled character in Of Mice and Men. In the state of Texas, Bérubé reminds us, a disabled individual can be sentenced to death if their “mental capacity […] exceeds Lennie’s.” Suddenly, how we interpret literary representations of intellectual disability becomes a literal matter of life and death. Bérubé writes, “the interpretive stakes are always high when the subject is intellectual disability, because the stakes are ultimately about who is and who is not determined to be ‘fully human,’ and what is to be done with those who (purportedly) fail to meet the prevailing performance criteria.” I can’t prove that Bérubé was thinking about his son when he wrote that sentence; I can only tell you that as I read, I was thinking about mine.
Now in Moore v Texas, the “Lennie Standard” will come up before the Supreme Court. SCOTUSblog has the documents. The New York Times piece quoted above summarizes the history of the case and the various opinions behind it.
In the end, here’s the real legal question: Do judges and juries get to decide who is not disabled enough to be killed or do medical professionals?
My position: Judges and juries are biased. Medical professionals, likewise, have a pretty dark history when it comes to assigning diagnostic labels. So let’s just end the death penalty.