01/28/2015 05:13 pm ET Updated Mar 30, 2015

Texas Sending Man to Death Chamber on Thursday Based on 'Of Mice and Men'


According to Thomas Steinbeck, his Nobel-winning father, John Steinbeck, would turn in his grave if he knew his fictional character, Lennie Small, helped Texas courts decide who qualifies for the death penalty. Lennie, from Of Mice and Men, is an enormous, ungainly, mentally defective man who loves to pet dead mice. Invoking Lennie as its benchmark, the Texas Court of Criminal Appeals announced rules that fail to protect persons with intellectual disability from execution. Because of these unscientific and fictional standards, Robert Ladd, a man who has an IQ of 67, faces the death chamber this Thursday.

Under the federal Constitution, if a defendant has intellectual disability he or she cannot be executed. But the Court of Criminal Appeals -- the highest court in Texas for criminal cases -- has dodged this simple rule by applying its own stereotypes, rather than science, to craft a definition of intellectual disability. In doing so, the court announced that it would not provide protections for persons who are less disabled than Lennie Small without more direction from the Texas legislature.

There are clear, long established clinical definitions for determining intellectual disability. Developed by mental health organizations, these standards are used to evaluate intellectual disability for school, social services, social security, or -- in other states -- eligibility for execution. Indeed, the Court of Criminal Appeals acknowledges there is a known scientific definition of intellectual disability but then adds its own guidelines -- the so-called "Briseno factors." These factors have never been endorsed by any scientific or medical association. Indeed, the scientific andmedical communities have rejected the Brisino factors as patently invalid.

For Robert Ladd, the Texas Criminal Court's fictional standard may well be lethal. With his IQ of 67, he clearly meets the first part of the widely accepted definition of intellectual disability. The evidence also shows he satisfies the second and third parts of the definition -- significant adaptive deficits and onset by age 18.

In 1970, when Robert Ladd was 13 years old, a psychiatrist working for the State of Texas concluded that he was "fairly obviously retarded." As an adult, Mr. Ladd received services at the Andrews Center, a non-profit comprehensive mental health and mental retardation center. There, he worked a job in which he was paid less than minimum wage, because there is an exemption from the minimum for people who are intellectually disabled. He had a case manager who drove him to work and helped with his shopping, because he could not manage his money or pick out clothes of the right size.

For a mental health professional utilizing accepted clinical standards, the diagnosis is clear and straightforward: Robert Ladd has intellectual disability. He is not Lennie, but as Thomas Steinbeck puts it: "the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability." By requiring that a person match a character in a novella in order to be afforded the protections of the Constitution, Texas has strangely, and tragically, turned fiction into fact.