How Lennie in Of Mice and Men influences Texas death row cases

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The influence of John Steinbeck's depression-era novel Of Mice and Men stretches far beyond literature — so far, that it is a crucial reference point in a U.S. Supreme Court case.

The book inspired Cathy Cochran, a judge on the Texas Court of Criminal Appeals, to create "the Lennie standard," a test for intellectual disabilities that drew inspiration from Steinbeck's character.

In the state where one-third of American death sentences are carried out, the determination of mental capacity based in part on the character, Lennie, is of real concern to Anna Arceneaux. 

Arceneaux was in the U.S. Supreme Court to hear arguments, Nov. 29. She's a senior staff attorney with the American Civil Liberties Union​'s Capital Punishment Project, which filed a brief with the court and argues using this legal touchstone as it is based on stereotypes, not science.

Lennie standard is 'problematic'

Arceneaux explains to The Current's guest host Kelly Crowe that much of the standard has no clinical basis. It involves asking people who knew the defendant in his childhood if they considered him to have an intellectual disability. 

"That's not a factor that someone in the school system would consider if they were trying to determine whether someone meets the criteria for intellectual disability to be eligible for special education services," says Arceneaux.

She says family members, neighbours, even teachers are not equipped to diagnose intellectual disabilities, that's often left to the experts, psychologists and social workers.

"There's so much stigma attached with being … intellectually disabled that people are reluctant to have their loved ones identified as intellectually disabled."

Other factors include whether the person was able to carry out plans that Arceneaux says is based on a stereotype of people with disability that can't do anything.

Lennie test is 'constitutional'

The office of the Texas attorney general defends their process and says in a statement to The Current, "Texas' standard for intellectual disability is constitutional and fits well within the national consensus among states about how to define intellectual disability." 

Victims advocate and retired lieutenant Patrick Turley has investigated many homicides, including capital murders in Texas. He tells Crowe that while the courts probably use "the Lennie standard" in layman's terms and may have oversimplified it by referring it to a character in Of Mice and Men, it's still "somewhat of an understanding that we have in law enforcement."

"If we do have somebody with that capability, with that intellectual disability, we would still make the arrest and it would be up to the courts, and the court system to determine the capacity to have committed the offense as a capital murder."

An alternative test to determine intellectual disability

Psychology professor Marc Tassé says there's no real way a layperson can make an accurate judgement to determine intellectual disability.

"The condition of intellectual disability is a very broad and complex condition and people have a very wide range of ability," he tells Crowe.

"The only way we can really ascertain if they have an intellectual disability is by doing this rigorous assessment," that Tassé says includes the individual's intellectual functioning and their adaptive behavior.

Tassé has developed a test he says Texas should be using instead of the existing factors. His test is meant to diagnose and be used by clinicians who present their assessment to the courts.

The test which will be published by the American Association focuses specifically on the decision clinicians must make around if the person has significant deficits and adaptive behavior in three broad areas — conceptual skills, practical skills and social skills.

Listen to the full segment at the top of this post.

This segment was produced by The Current's John Chipman.