Of Mice and Dead Men: Texas Court of Criminal Appeals Uses Steinbeck’s Lennie Small to Measure Mental Retardation of Criminals

Texas continued its trend of executing mentally-challenged criminals yesterday, killing 54-year-old Marvin Wilson by lethal injection.

Wilson, who was convicted of killing a police informant two decades ago, was declared mentally retarded by a court-appointed neuropsychologist but found to be accountable for his actions (and declared not mentally retarded) by the court. While the Supreme Court banned the execution of mentally retarded criminals in the 2002 ruling of Atkins v. Virginia, they committed the oversight of allowing states to define for themselves what constitutes mental retardation. Whereas most states would recognize Wilson’s IQ of 61 as evidence enough that he is unfit for execution, in Texas – where they love to execute people, whether or not they are retarded – the Texas Court of Criminal Appeals has invented a non-clinical, non-scientific set of factors to measure mental retardation called the “Briseño factors.”

The “Briseño factors,” writes Salon, “were inspired by Lennie Small, the fictional migrant farm worker from the famous novel Of Mice and Men…” In the words of the Texas Court of Criminal Appeals:

Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition be exempt from an otherwise constitutional penalty?”

In other words: “Come on, this is Texas, you can’t expect us to not execute any retarded people. What about the ones that are just a little retarded?”

Wilson’s attorney told Salon that “not a single clinician or scientific body uses or even recognizes the ‘Briseño factors’ as valid.” Yet, it seems a good enough loophole for Texas to work around the Supreme Court’s ruling against the execution of mentally retarded prisoners. The Supreme Court rejected a request for a stay of execution hours before Wilson was put to death.

Predictably, Steinbeck’s family is not thrilled with the Nobel Prize winning author’s work being used as an excuse for the state of Texas to murder the mentally challenged. His son, Thomas Steinbeck, issued a statement voicing his surprise and disapproval of his father’s character being used “as a benchmark to identify whether defendants with intellectual disability should live or die.” Thomas Steinbeck went on to speculate, “I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way.”

While it’s perhaps surprising that the Texas Court of Criminal Appeals, an organization which it seems is largely interested in finding excuses to put to death the mentally challenged, has actually read Of Mice and Men, they clearly have some reading comprehension issues. Using a fictional character to justify putting the intellectually challenged to death is a mind-bendingly stupid application of an American classic. For that, the Texas Court of Criminal Appeals should be given a retroactive F in high school English.

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