In 1991 I spent a long week covering the capital murder trial of Henry Curtis Jackson Jr. Curtis, as everyone called him, stabbed and killed four of his nieces and nephews, all under the age of five. He also stabbed his adult sister and left another child a paraplegic for life. All of this violence was committed while he attempted to rob a safe in his mother’s house. His attorneys said he suffered multiple brain injuries in childhood and that his judgment was impaired. They said he wasn’t in his right mind when he committed the crimes. His IQ was discussed and debated, as was his mental state on that brutal evening in the Mississippi Delta. He was found guilty and sentenced to death. That sentence was carried out by lethal injection in 2012.
Whether Curtis Jackson was legally incompetent was not an easy call. He’d made it through high school, which the prosecution pointed to as a sign of his mental capacity. Of course, in Mississippi and in plenty of other places, all that’s required to get through school is the ability to run a ball down the field. Curtis Jackson could do that. His coaches testified about his football talent.
Even if his attorneys could definitively label him intellectually disabled, it likely would not have saved him. Mississippi is notoriously ruthless when it comes to carrying out its death penalty. It has put to death men with IQ measurements in the low-70s. Now IQ test results can vary based on how the test is administered, and by whom, and where, and at what time of day, but only about two percent of the population scores at 70 or below.
Texas, another brutal death penalty state, uses an even more abstract measurement to determine a defendant’s mental health. Called “the Lennie standard,” Texas makes decisions based on a fictional character from American literature. Lennie Small, the slow-witted farmhand from John Steinbeck’s Of Mice and Men, provides the template for determining a criminal’s mental state. I first became aware of the Lennie standard when I read this story in The New York Times: Supreme Court to Consider Legal Standard Drawn from ‘Of Mice and Men’. I have been thinking about it ever since.
Now I grew up on the writings of John Steinbeck and I return to them often. In tenth grade, I used The Grapes of Wrath for my history presentation on the Great Depression. I once read Of Mice and Men over the course of a very long and tearful bath. When my husband turned fifty, we traveled the California coast from San Francisco to Los Angeles. I read aloud from Cannery Row as he drove. In Monterey, a group of men crossed the road in front of our rental car. The men were sun-browned, shirtless, a bit drunk, and laughing. My husband and I looked at each other and shouted in unison: “Mack and the boys!” It was a highlight of the trip.
All of this is to say that I understand the compulsion to compare real life situations to fictional ones, particularly when it comes to Steinbeck. His characters are more real to me than many people I read about in the newspaper. If anyone were likely to use fictional examples to prove a real point, it would be me. But even I am uneasy with the knowledge that the justice system in one of America’s largest states relies on an eighty-year-old work of fiction to determine whether a person is mentally sound enough to be put to death. It boggles the mind.
Further, the Lennie standard seems to be primarily used to skirt the Supreme Court ruling of 2002, which states that executing an intellectually disabled person is a violation of the Constitution. Each state has its own rules for determining intellectual disability. In some states, an IQ of around 70 points is enough. In others, you’ll need to test in the low-60s. But in Texas, you can be measured against a list of character traits ascribed (many inaccurately) to the fictional Lennie Small. By all accounts, this infuriates Steinbeck’s family. Since the Lennie standard was first put forth in 2004, Texas has executed numerous people who would, by any other standard, be considered intellectually disabled. The case of Marvin Wilson is an excellent example (Of Mice and Men: The Execution of Marvin Wilson — The Atlantic, 2012). Here is a man who couldn’t tell time and who sucked his thumb, but Texas thought he was fit to be killed. And that’s just one example.
The Texas court justice who came up with the Lennie standard seems to have done so with good intentions. She cites her love of Steinbeck’s work and her years spent living on Cannery Row. She says Lennie Small is the perfect example of someone who should be spared execution despite taking a life. And that’s the problem, really. Fiction often mirrors real life. Steinbeck based many of his characters on real people, but only a fiction writer can create a “perfect example.” In real life, things are not so easy. For one thing, the victims in real life cases have real life families who speak on their behalf. For another, while Lennie Small was drawn as a lovable sidekick who adored small animals, most real life criminals are hard to love, regardless of their intellectual capacity.
In real life, people with diminished intellectual capacity often fall through the cracks of our legal and mental health systems, particularly if they have the tremendous bad luck to be born poor or if their mental capacity is compromised by childhood abuse or trauma. Poor people in literature are often sympathetic. Poor people in real life face an awful lot of ugly judgment. Nearly all of the men who are executed in Texas and elsewhere live some portion of their lives in poverty. And, of course, so did Lennie Small. There is no greater example of poverty than the life of an itinerant farm worker during the Great Depression. And yet, Lennie’s ongoing employment, would have worked against him in a Texas court. The ability to hold down a job is evidence of mental fitness according to the Lennie standard. In fact, the standard is so full of contradictions, it would be laughable if it weren’t heinous.
I’m glad the U.S. Supreme Court will take up the question of whether the Lennie standard is constitutional. I certainly hope they will put this particular standard to rest. I have tremendous respect for fiction that shines a light on real issues; I think we should avoid using it to justify state-sponsored death. When I heard about the execution of Curtis Jackson some twenty years after I covered that trial, I felt sad. I felt sad for his siblings and his mother. They begged the court to spare his life. They were the surviving victims and the court might have taken their pleas into account, but did not. Mississippi doesn’t use the Lennie standard, but its decisions are often subjective. Nonetheless, Curtis Jackson was no Lennie Small. I don’t believe anyone is.
In fact, I wonder if the Texas justice who came up with this standard actually finished reading Of Mice and Men. Spoiler alert: Lennie’s best friend and caretaker, George, kills Lennie to avoid the sure prospect of state execution. George takes Lennie’s life while telling him a happy story. The happy story makes it easier, but it doesn’t excuse the injustice of the situation. It doesn’t bring back the dead girl. It doesn’t save Lennie. It certainly doesn’t fix the justice system, as flawed then as it is now. It was a fiction created to make a bad situation easier. It was heartbreaking. In real life we shouldn’t rely on fiction to make killing easier. Putting someone to death should not be an easy decision and it should not rely on a subjective standard based on a work of fiction, no matter how good that particular work of fiction happens to be.
It is heartbreaking. It should stop.