Intellectual Disability and Death Row in Texas: Why Lennie Should Not Be the Standard

In Atkins v. Virginia, the Supreme Court issued a momentous ruling stating that it is a violation of the Eighth Amendment ban on cruel and unusual punishment to execute inmates with intellectual disabilities.

This statement seems straightforward. However, the Court failed to establish a specific test or define under what circumstances it considers individuals to be intellectually disabled for purposes of capital punishment. Thus, in practice, states are left to determine what standard to utilize. Many states have followed the clinical definition of intellectual disability, which is based on three factors: (1) limits in intellectual functioning, (2) limits in adaptive behavior, and (3) the onset of these limitations before age 18. This definition avoids using a standard IQ score and allows the court to take all factors into consideration.

However, some states have opted for their own definitions. Texas utilizes a set of guidelines known as the Briseño factors. Interestingly, the Briseño factors are based upon one judge’s reading of Steinbeck’s Of Mice and Men. A quick recap of the novel: a mentally disabled giant, Lennie, is fascinated with soft things, does not realize the damage he is capable of, and eventually kills a man. Texas utilizes this character from a work of fiction to determine when to subject individuals to the death penalty, despite clear proof that they suffer from the medical definition of an intellectual disability. It should be noted that no group of medical professionals or scientific body recognizes the Briseño factors. The court that established these factors stated that Texas citizens “would not want to rely on the same definition of intellectual disabilities used for providing psychological assistance and social services,” and that, this definition, based on a fictional character, “would provide a clearer rule.”

The seven Briseño factors attempt to determine the following: whether people who knew the individual during the developmental stage thought he was “mentally retarded,” whether the person has formulated plans or is impulsive, and whether the individual is a leader or a follower. Moreover, the factors consider whether the person’s actions and words are rational and appropriate, whether they can lie effectively, and whether the crime required planning or forethought. Not only are these factors subjective, but also the testimony of how others perceive the individual, even based upon a single meeting, can be determinative. This is extremely problematic given the evidentiary rules regarding character evidence that aim to ensure decisions are not based upon the opinion of one individual. 

These factors applied to actual cases before Texas courts help to demonstrate this horrific misapplication. In the Lizcano case, the defendant had an IQ of 60 and testimony from his teachers and family corroborated his intellectual disabilities. The State put forth no evidence other than the fact that one used car salesman testified that he saw nothing that caused him to hesitate in selling a truck to the defendant. Based on this one statement, the jury found that the defendant did not suffer from any intellectual disability and sentenced him to death.

In Hall v. State of Texas, the defense put forth testimony and affidavits from Hall’s family, three expert witnesses, a former teacher, and fellow inmates indicating their belief as to his intellectual disabilities as well as testimony from his trial attorney stating that he could not grasp the legal theories or penalties for his crime. The State brought two key witnesses: a waitress who said Hall could eat with utensils normally and a former co-worker who said he could bag groceries. The State also put forth affidavits from death row guards who stated that they did not believe Hall was mentally disabled. Based on this information, and despite the mountains of evidence provided by the defense, the jury sentenced Hall to death. These are just two of the many examples where the application of the Briseño factors result in a severe injustice and death of an intellectually disabled person.

The Iustitia Legal Center urges the State of Texas to rethink this misguided sentencing structure and utilize an approach verified by the medical community. The Briseño factors use improper considerations and focus on isolated incidents of sound mind that medical professionals do not view as telling when evaluating the intellectual capacity of an individual. When an individual’s life is in the hands of the criminal justice system, biased, uninformed, and arbitrary decision making is unacceptable. As the State of Texas has executed the highest number of individuals since 1976, reform is necessary to ensure that more lives are not lost.

These guidelines must be challenged to guarantee that individuals are not sentenced to death based on a comparison to the actions and behavior of a fictional character from the 1930s.

Also posted on Medium here.