08/08/2012 03:16 pm ET Updated Dec 06, 2017

Texas Death Penalty Enforced Based On Outdated Methods Inspired By John Steinbeck Book

The state of Texas executed 54-year-old Marvin Wilson by lethal injection Tuesday night. Wilson had been on death row since 1992 after being convicted for the murder of a police informant named Jerry Robert Williams, who Wilson blamed for leading authorities to his apartment, where they subsequently seized 24 grams of cocaine.

Out on bond and facing a possible third charge to go with a pair of prior convictions for robbery, Wilson physically confronted Williams outside a convenience store, assaulted him with the help of an accomplice and then, according to witness' accounts, abducted Williams and shot him.

Given Texas' generally favorable disposition towards using capital punishment, it's not surprising that Wilson ended up on death row. But Wilson's lawyers worked hard to spare him from the death penalty, and they were armed with a 2004 psychological evaluation that determined Wilson had an IQ of only 61. As the Associated Press reported, this was "below the generally accepted minimum competency standard of 70," and thus below the acceptable threshold for execution eligibility established by the Supreme Court's ruling in Atkins v. Virginia. (In that 2002, 6-3 ruling, the Court found that executing mentally inpaired individuals violated the spirit of the ban on cruel and unusual punishment in the Eighth Amendment.)

The AP reported that prosecutors argued that the single psychological test was "possibly faulty" and not "supported by other tests and assessments over the years." State attorneys also pointed to Wilson's facility with his "drug-dealing, street-gambler, criminal lifestyle," in which he demonstrated the ability to "manage money" and implement "inventive" criminal "schemes."

All of which is a solid argument, like it or not. But as it turns out, that's not the entire argument Texas authorities made in their prosecution and condemnation of Wilson. Now, Wilson's death has cast a light on a set of standards that the Texas Court of Criminal Appeals has been using to adjudicate the mental fitness of death row convicts. As it turns out, their determinations are based on standards that are just as (if not more so) "unfounded and highly subjective" as the psychological exam to which prosecutors objected. And those standards aren't so much based in science as they are based on a novel that people read in the eleventh grade. As Rania Khalek reports for Salon.com:

Texas, unlike any other death penalty state, measures mental retardation using nonclinical standards invented by the Texas Court of Criminal Appeals. Known as the "Briseño factors", these standards have absolutely no basis in science or clinical application. Instead they were inspired by Lennie Small, the fictional migrant farm worker from the famous novel "Of Mice and Men," written by the late Nobel Prize winning American author John Steinbeck.

Is this for real? Yes, this is for real:

Wilson’s attorney, Lee Kovarsky, told Salon that eight years later, not a single clinician or scientific body uses or even recognizes the "Briseño factors" as valid. "There is no citation to any science or opinion as to where those factors come from," he adds. In fact, the only reference the TCCA made was to Steinbeck’s Lennie Small:

"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 of mental retardation be exempt from an otherwise constitutional penalty?"

John Steinbeck isn't around to condemn this, but his family is, and as Khalek reports, they are pissed, insisting that the author would, were he alive, let it be known on no uncertain terms that he would be "deeply angry and ashamed to see his work used in this way." As Steinbeck's son, Thomas, put it, the novel was "certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability."

This, of course, would be instantly apparent to anyone who has actually read "Of Mice And Men," or glanced through the novel's CliffsNotes, or seen one of the films based on the book, or asked a friend about it. "Of Mice And Men" is such a widely assimilated part of American culture that the writers at Saturday Night Live -- in a sketch that's brimming with new ironies now -- felt safe enough in using the novel's climactic moment in a GOP primary debate parody, certain that everyone watching would get the joke.

This is not the first time that a death penalty case in Texas has led to the exposure of these sorts of disturbing legal standards. When fire scientists examined the evidence that was used to convict Cameron Todd Willingham of arson in 1992, they discovered that the arson investigators who worked the case relied on a set of standards derived from what could charitably be described as "utter hokum." As David Grann reported for the New Yorker:

In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez’s approach seemed to deny "rational reasoning" and was more "characteristic of mystics or psychics." What's more, Beyler determined that the investigation violated, as he put it to me, "not only the standards of today but even of the time period."

I'd like to be able to joke that any day now, the Texas state government will attempt to achieve drought relief by staging rain dances, but we've actually already crossed that bridge.

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