Supreme Court Will Consider Legality Of The 'Lennie Standard' When the court barred the execution of the intellectually disabled in 2002, Texas adopted the standard, based on John Steinbeck's character in Of Mice and Men, to define "intellectually disabled."
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Supreme Court Will Consider Legality Of The 'Lennie Standard'

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Supreme Court Will Consider Legality Of The 'Lennie Standard'

Supreme Court Will Consider Legality Of The 'Lennie Standard'

Supreme Court Will Consider Legality Of The 'Lennie Standard'

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When the court barred the execution of the intellectually disabled in 2002, Texas adopted the standard, based on John Steinbeck's character in Of Mice and Men, to define "intellectually disabled."

LINDA WERTHEIMER, HOST:

When the Supreme Court barred the execution of the intellectually disabled in 2002, it left a lot of leeway for individual states to determine just how they would define intellectually disabled, which led Texas to adopt what has come to be known as the Lennie standard based on the fictional Lennie Small from John Steinbeck's "Of Mice And Men." In the short novel, Lennie is a grown man, a clumsy giant, but he has the mind of a child. The legality of that standard will be considered by the Supreme Court this fall in a case called Moore v. Texas.

John Blume is a professor of law at Cornell University, and he joins us now. Thank you so much for being with us.

JOHN BLUME: Thank you very much for having me.

WERTHEIMER: Now, first of all, could you just take us back and explain how Lennie Small, a fictional character, became a legal standard?

BLUME: In Atkins versus Virginia, the Supreme Court held that the Eighth Amendment's cruel and unusual punishment clause prohibited states from executing persons with mental retardation, or what we now refer to as intellectual disability. After the Supreme Court's decision in Atkins, the Texas Court of Criminal Appeals first dealt with a claim that a person was intellectually disabled in a case called Ex parte Briseno. And in Briseno, the Texas court said, wow, look, everyone in Texas may agree that Lennie of Steinbeck's "Of Mice And Men" shouldn't be executed. They wouldn't necessarily agree that other people who meet the clinical definition of intellectual disabilities lives' should be spared.

And so that is what sort of gave birth to this Lennie standard, and they then go on to create some factors, which are very much based in stereotype, that courts should consider in deciding whether someone should be exempt from capital punishment.

WERTHEIMER: So who does the Lennie standard exempt?

BLUME: Well, in Texas, not very many people. Texas has a very low success rate. If you look at it nationally, about half the prisoners who have sought the benefit of the Supreme Court's categorical bar are found to be intellectually disabled. In Texas, that number is about 10 percent.

WERTHEIMER: Is the problem with the Lennie standard that it's based on fiction?

BLUME: I think it's based on fiction. It's really based on stereotype. For example, one of the factors that the Texas Court of Criminal Appeals said people should consider are things like, you know, can the person lie effectively? Did everyone who knew them think they were intellectually disabled? Of course, the Steinbeck character, in a way, is also based on somewhat stereotype of what we think somebody with intellectual disability should look like, act like and be like. And that just doesn't match up with the reality.

If you talk to, you know, people who work with people with intellectual disability every day, they'll say, look, you know, you can't tell by looking at someone. People with intellectual disability have many things that they can do. But when you use this type of stereotypical character, then you're bound to have unreliable outcomes.

WERTHEIMER: So this standard is going to be reconsidered this fall in a case Moore v. Texas. Who is Moore in this case?

BLUME: Mr. Moore is a death row inmate in Texas who raised the claim that he was intellectually disabled and thus was protected from execution under the Supreme Court's decision in Atkins. And his claim was rejected by the Texas Court of Criminal Appeals using what we've been talking about is the Lennie standard.

WERTHEIMER: How was he compared to Lennie Small? What weighed against him when the court determined that he should be put to death?

BLUME: Well, the court looked at these very stereotypical factors and they said, well, here are some reasons why we don't think he's met his burden of proof. He played dominoes with other inmates on death row. He wore a wig at the time of the offense and then fled. He actually went to his grandmother's house where he was easily apprehended. He worked mowing lawns. And so all of these stereotypical factors about what people with intellectual disability can or cannot do, which are rejected by clinical consensus, were used by the Texas Court of Criminal Appeals to say that it's perfectly fine to execute Mr. Moore.

WERTHEIMER: What standard should be adopted instead of the Lennie standard do you think?

BLUME: There is a generally agreed upon definition which says that someone has to show that they have significantly subaverage intellectual functioning, that this affects how they operate their ability to function in the world and this existed before the age of 18. Texas has this definition, and they apply it in all other areas of the law, whether someone's entitled to Social Security benefits, whether they should be in a special education program. They've carved out this one exemption and added this gloss for capital cases only primarily because the Court of Criminal Appeals doesn't like the Atkins decision itself.

WERTHEIMER: John Blume is a professor of law at Cornell University. Thank you very much for joining us.

BLUME: Thank you very much for having me.

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