SOURCE ALERT: Law Expert Craig Trocino discusses Texas Death Penalty Case to be heard by the Supreme Court of the United States


The United States Supreme Court agreed to hear the case of Bobby Moore to consider the limits of the Eighth Amendment’s prohibition against executing the mental disabled. A Texas appellate court held that Moore could be executed irrespective of his mental disability because he passed the “Lennie standard.” The court held the fictional character Lennie Small, from John Steinbeck’s “Of Mice and Men,” formed the basis of a seven-part test to determine whether a person’s level of mental disability qualified him to be executed. Moore, who’s IQ has been measured as low as 57 and as high as 78 was found to be eligible for execution in Texas. This was based on a standard sourced from Steinbeck’s 1937 novella and medical standards from 1992. Eschewing modern scientific data and medical research, the Texas court held that the life and death opinions of judges and juries should control over scientific consensus. 

Craig Trocino

Craig Trocino is the Director of the University of Miami School of Law Innocence Clinic, which is dedicated to identifying and exonerating the wrongfully convicted in Florida and teaches Wrongful Convictions: Causes and Remedies. He has published articles on topics ranging from comparative law, scientific evidence, death penalty, and criminal law. Mr. Trocino also has extensive experience in criminal appeals and post-conviction litigation, including capital habeas litigation.

What is the prohibition against executing the mentally disabled?

In 2002, the Supreme Court of the United States held, in Atkins v. Virginia, that the Eighth Amendment forbids the execution of individuals who are “mentally retarded.” The Court came to the conclusion that those who are mentally disabled, because of disabilities in judgment, reasoning and impulse control, do not act with the same level of moral culpability as a normally functioning adult. The death penalty is supposed to be reserved for the most culpable and the “worst of the worst” in order to satisfy the Eighth Amendment’s ban against cruel and unusual punishment. Therefore, a mentally disabled person’s inherent lower level of moral culpability renders them ineligible for execution under the Eighth Amendment.

Isn’t the decision of who is or is not mentally disabled easy to make?

Not necessarily. In the Atkins decision, the Supreme Court left it to the states to define what “mental retardation” or mentally disability meant. In states that still employ the death penalty, it has lead to varying degrees of what constituted a mental disability and therefore, who was eligible to be executed. For instance, Florida defined mental disability using IQ scores as a final score, not a range and set a strict 70 IQ or less cutoff. This was problematic because IQ scores are a range generally, plus and minus five points. In many death penalty states, a person with a 71 IQ would be ineligible for the death penalty but not in Florida. The Supreme Court in Hall v. Florida found the strict IQ cutoff unconstitutional because it disregarded standard medical practice of using IQ test scores as a range with a standard error of measurement.

What is the effect of the Texas Court’s ruling in the Moore Case?

In the Moore case, Texas, like Florida did pre-Hall, disregards standard medical practice in favor of “the Lennie Standard,” a seven-part test based on Lennie from John Steinbeck’s “Of Mice and Men.”  When courts are charged with making life and death decisions, they should be required to base them on more than conjecture from a well-known literary character. Rather, justice and fairness dictate that experts in the field of cognitive development and brain science be consulted. Such decisions are the culmination of anti-science and anti-intellectual dogma being pursued across America. Court’s like the Texas Court of Appeals seem to be satisfied that the ultimate penalty should be meted out, not through rigorous scientific testing and medical standards, but by how local judges and juries feel about a person before he is condemned. While juries may feel like a “Lennie” should be executed, ignoring the science behind his cognitive disabilities is dangerous. Just because a jury feels Lennie should die does not render his moral culpability sufficiently high enough to satisfy the Eighth Amendment.

CONTACT: Catharine Skipp at 305-773-5801 or