Supreme Court Asked to Review Texas’ Use of Factors Based on a Fictional Character to Reject Death Row Prisoner’s Intellectual Disability Claim

Bobby James Moore (pictured) faces execution in Texas after the state’s Court of Criminal Appeals rejected his claim of intellectual disability in September 2015, saying he failed to meet Texas’ “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test which a judge based on the character Lennie Smalls from John Steinbeck’s “Of Mice and Men.” In doing so, the appeals court reversed a lower court’s ruling that tracked the scientific diagnostic criteria set forth by medical professionals, which found that Moore had intellectual disability. On April 22, the U.S. Supreme Court will conference to decide whether to hear Moore’s case. Moore’s lawyers argue, supported by briefing from national and international mental health advocates, that he has intellectual disability and that the non-scientific standard employed by Texas in denying his intellectual disability claim violated the Court’s 2014 ruling in Hall v. Florida. In 2002, the Supreme Court ruled in Atkins v. Virginia that the 8th Amendment prohibits the use of the death penalty against persons with mental retardation, now known as intellectual disability. But Atkins left it to the states to adopt procedures for determining whether defendants were intellectually disabled. Hall struck down Florida’s strict IQ cutoff for determining intellectual disability because it “disregards established medical practice.” Texas is the only state that uses the Briseño factors, which include whether the crime required forethought or planning, whether the person is capable of lying effectively, and whether the defendant is more of a leader or a follower. The state court disregarded Moore’s clear history of intellectual disability, documented since childhood, and IQ scores ranging from the low 50s to the low 70s, in favor of Texas’ idiosyncratic method.

(A. Arceneaux, “Texas is using “Of Mice and Men” to justify executing this man. Seriously.” Salon, April 21, 2016; J. Barton, “Judging Steinbeck’s Lennie,” The Life of the Law, September 2013.) Read the Texas Court of Criminal Appeals’ decision in Ex parte Bobby Moore here and the briefs of the parties filed in the U.S. Supreme Court here. See Intellectual Disability.