Can Texas use a fictional character from a John Steinbeck novel to determine intellectual disability of a human for the death penalty?
That is question at the center of Moore v. Texas, as it heads to the U.S. Supreme Court.
Texas has been using what it calls the “Lennie standard," based on the intellectually disabled character Lennie Small in John Steinbeck’s novel “Of Mice and Men," after the court barred the execution of the intellectually disabled in 2002, NPR reports.
“Mr. [Bobby] 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 [v. Virginia],” John Blume, a law professor at Cornell University, told NPR in August. “And his claim was rejected by the Texas Court of Criminal Appeals using what we've been talking about is the Lennie standard.”
The Texas attorney general’s office says it “fully complies” with the Atkins decision when using the Lennie standard, Fox News reports.
In 2014, the case of Hall v. Florida decided that an IQ of 70 or higher was the cut-off for capital punishment, notes SCOTUSblog.
However, Moore, at various times, has tested at 57, 77 and 78 on the IQ test, notes Fox News.
Texas Solicitor General Scott Keller said that Moore’s claim of intellectual disability cannot be argued "under any relevant standard."
But lawyers for Moore contest that, by age 13, the defendant still “lacked basic understanding of the days of the week, the months of the year, the seasons, telling time, the standards of measure and the principle that subtraction is the reverse of addition.” All points are grounds for intellectual disability under the Lennie standard, adds SCOTUSblog.
In 1980, at age 20, Moore and two men robbed a supermarket during which an employee was shot and killed. A jury convicted Moore of the shooting, and a judge sentenced him to death.
When the Texas Court of Criminal Appeals reviewed the case, Blume notes that Moore was subjected to “stereotypical factors” and was determined not to have met the “burden of proof” for intellectual disability, NPR reports.
“He played dominoes with other inmates on death row,” Blume noted to NPR in August when discussing the factors the Texas court considered. “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.”
There is a chance the Supreme Court will hear oral arguments for the case on Nov. 29.