Off limits: Of Mice and Men and the death penalty

December 24, 2016

of-mice-and-menOPINION by STEPHEN COOPER

Seventy years after its publication, John Steinbeck’s Of Mice and Men continues to stimulate debate, pro and con, about the death penalty. But justifying capital punishment was the last thing on the mind of the author, a liberal thinker who created the character of Lennie to increase our understanding of the mentally challenged and the American underclass.

As a defense attorney who admires Of Mice and Men for this very reason, I’m angry that Texas Court of Criminal Appeals Judge Cathy Cochran used Lennie in a 2004 legal opinion about imposing the death penalty when mental capacity is at issue. The “Lennie standard” she proposed continues to have consequences in the courts, and in the lives of the condemned.

John Steinbeck’s late son Thom, an accomplished writer, was furious about Judge Cochran’s opinion after it was rendered. In a 2012 interview with the Beaumont (Texas) Enterprise, Thom’s wife Gail Steinbeck, an attorney, said that “his ears turned red” when her husband first learned of Ex Parte Briseno. In his view, the decision was a gross distortion of his father’s meaning. In a statement published by The New York Times on August 8, 2012, Thom complained bitterly about the misconstruction of his father’s intentions in writing Of Mice and Men:

“I had no idea that the great state of Texas would use a fictional character that my father created . . . as a benchmark to identify whether defendants with intellectual disability should live or die,” Thom Steinbeck said. “My father was a highly gifted writer who won the Nobel Prize for his ability to create art about the depth of the human experience and condition. His work certainly wasn’t meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability.

“I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic. I am certain that if my father, John Steinbeck were here, he would be deeply angry and ashamed to see his work used in this way.”

The Supreme Court considers the case of John Steinbeck

In 2002, the Supreme Court outlawed the death penalty for the intellectually disabled, but left it to the states to define what constitutes intellectual disability. Since 2004, courts in Texas have used Judge Cochran’s ill-considered Lennie standard to determine intellectual disability in capital punishment cases. Arguing before the Supreme Court last month in Moore v. Texas, the solicitor general of Texas, Scott Keller, bristled when Justice Sonya Sotomayor asked him about the state’s use of the Lennie standard, an illogical jumble concocted from a sentimental—and incorrect—interpretation of John Steinbeck’s character.

“The character from Of Mice and Men was never part of the test,” asserted Keller in the state’s defense.

“It was an aside [in Judge Cochran’s] opinion,” Justice Sotomayor replied. “But it informed its view of how to judge [intellectual disability], insisting that Texas clearly used the Lennie standard.”

Questions about Judge Cochran’s odd Of Mice and Men citation—and the quirkiness of a judge relying on a work of literary fiction to support a legal opinion—had been predicted long before oral argument before the Supreme Court began. M. Todd Henderson, a University of Chicago law professor, pointed out the nature of the incongruity in 2008.

“Citations to literature are extraordinarily rare in federal appellate court opinions, appearing in only 1 out of every 10,000 federal appellate cases,” Henderson wrote. “When judges do cite fictional works in judicial opinions, they are most likely to cite to novels for propositions that are closely related to their own work and job.”

That’s why it’s baffling that Judge Cochran was reportedly “unfazed” when she learned of Thom Steinbeck’s outrage over her violation of his father’s purpose in writing Of Mice and Men.

John Steinbeck wrote most Of Mice and Men at the Steinbeck family cottage in Pacific Grove, Calif. Ironically, Judge Cochran is said to have reread “all of Steinbeck” while living in nearby Monterey, three decades later, in the 1960s.

Recently, my wife and I traveled to the National Steinbeck Center in neighboring Salinas to celebrate our 15th wedding anniversary. Driving through John Steinbeck’s beloved Salinas Valley, we saw the still poor, still struggling migrant workers toiling under the California sun, like Lennie and George, for subsistence pay. That evening, we left our comfortable bed and breakfast to stroll hand-in-hand along the shore celebrated by Steinbeck in Sea of Cortez and Cannery Row. Nowhere, not even in the turbulent tide pools that Steinbeck explored with his wife Carol, did we perceive the death penalty.

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. Follow him on Twitter @SteveCooperEsq. This piece was written for http://www.SteinbeckNow.com. It is being published here with the author’s permission. 







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15 Comments

  1. Black Copter Pilot says:

    There is virtually no working death penalty in the state of California, only 13 executed since 1978 and most of those on death row row better than 20 years before their sentence was completed. It’s been over 10 years since the last inmate was exterminated.

    It’s odd that California doesn’t have the stomach for executing but when asked to outlaw it, the voters recently said no.

    And so we get a senseless letter about capital punishment and Steinbeck, for what purpose?

    (-1) 11 Total Votes - 5 up - 6 down
    • L.A.RamsFan says:

      And in the almost exact time period, from 1973, 156 human beings were exonerated from their death sentences in California ALONE! Thank f***in’ god, right? If the time line was shortened, ala Prop’ 66, to fulfill yours and others “zest for death” those folks would probably be dead. But I guess a “Black-Copter-Pilot” isn’t disuaded by something as unimportant as INNOCENCE though, right? Hell No! Kill ’em all and let MY god sort ’em out!

      I think the purpose of Mr. Coopers Opinion is not only evident but is made crystal clear by your post, Wanna-be-pilot; the absolute affixation this country has on killing one another even to the point of killing the mentaly ill (with you that would be the innocent as well) in the name of “Justice”. What a f***in’ crock!

      Your moniker is pretty descriptive of your point of view and is all that is wrong with a country that dictates to the world how they treat others while finding it easier and easier to kill it’s own.

      Is that copter of yours a “Halo” Gold Edition with the forward looking infared I don’t give shit about justice gatling gun with a hair trigger? Bet ya’ it is! I’m just glad it can’t go any further than your “man cave”…

      (3) 11 Total Votes - 7 up - 4 down
      • Black Copter Pilot says:

        Senseless comment as well, I label that as being consistent.

        I particularly admire the way you steotyped me as a function of my moniker. My guess is that got loaded early tonite before you posted

        (1) 11 Total Votes - 6 up - 5 down
        • paragon says:

          Exactly what part was senseless. He has a point – 156 people would have been wrongly killed by yet another example of government incompetence.

          It’s amazing that the same people who think we can’t trust the government to run our healthcare system somehow think we CAN trust the government to correctly decide who lives and dies by the justice system.

          (2) 10 Total Votes - 6 up - 4 down
          • Pelican1 says:

            The last time I checked all capital punishment accused defendants are afforded a trial judged by a jury OF THEIR PEERS…not the government.

            (0) 8 Total Votes - 4 up - 4 down
            • L.A.RamsFan says:

              “Peer” is defined as someone who is just like you, an equal. When was the last time you heard of a jury of once suspected and accused murderers hearing a murder case? And if you trully believe that shit then in the case of a mentaly ill defendant shouldn’t there be at leat two or three people on that jury with the same IQ as the accussed has? Probably not, huh? Considering it would be considered a disqualification for jury duty in any court today isn’t it ironic it won’t get you the same consideration as to being eligible for the death penalty? Wow! So much for your “peers”…

              (-1) 7 Total Votes - 3 up - 4 down
              • Pelican1 says:

                I strongly suggest you study up on the jury selection process. You’ll have a much better understanding of the term “jury of their peers”

                (-1) 3 Total Votes - 1 up - 2 down
                • L.A.RamsFan says:

                  I strongly suggest that you don’t suggest I don’t know what it does mean, today, and what it’s suppose to mean…. It’s much like “Equal Justice For All” …. A Crock Of Shit!

                  I know the “Jury Selection Process” as I’ve been involved in that “process” on a couple of occasions from the side of a defendant. I know the absolute ferver the prosecution has in trying to seperate anyone from a jury who can even remotely be seen as one of your “peers”; a jury of “peers” was first used in English common law with the clear intent to keep the peasants from judging the higher ups, their lords. Now it means absolutely nothing.

                  I know what it means, or conversly what it doesn’t mean, but would a mentaly ill person? I doubt it! That in itself should be enough to convince any civilized person, society, country or people not intent on murder to exclude the mentaly ill from any possibilty of the death penalty, don’t you think?!!

                  (0) 4 Total Votes - 2 up - 2 down
                • Pelican1 says:

                  LOL…You think much like your Rams play.

                  (1) 1 Total Votes - 1 up - 0 down
        • L.A.RamsFan says:

          Nope, I waited to get loaded until later on last night. Does that qualifiy me for the death penalty as well in your world? And nope! I didn’t “steotype” you, you took care of that yourself with the combination of your post AND your moniker. Good Job!

          Answer me this Mr. Pilot; why is it in the most “civilized” country in the world, the one who pushes down the throats of every other country in the world thier moral agenda and “justice” has one of the highest per capita murder rates in the world (92nd out of 218) ? Why does it have one of the highest violent crime rates per capita in the world (again, 92nd out of 218)? All of that AND we have the death penalty to boot? Geeeee! I guess when the “Bitch, bitch, bitch” isn’t gratifying enough and you can’t get enough killing on your game console you need to include the mentaly ill to fill your cup of death, right?

          One other thing… If it takes gettin’ high to see the absolute hypocracy folks like you represent? May I suggest a bowl full of some good Northern Cal’ Red Haired Sesamea (still one of THE best)? Then sit down and read what most of the highest law enforcement officials in this country have to say about the relivance of the death penalty in our modern society. The combination of the two should clear a few things up for ya’!

          (0) 8 Total Votes - 4 up - 4 down
          • Black Copter Pilot says:

            Maybe I made a mistake, maybe not high but certainly manic.

            But, who really cares anyway?

            (-1) 1 Total Votes - 0 up - 1 down
            • L.A.RamsFan says:

              Oh, here we go…… Manic? Did you just put me in the company of the likes of Churchill, Einstein, FDR and the many, many, MANY other world renowned figures who now would be “classified” as such? I don’t think I come close to measuring up but I do appreciate the nod…

              Who really cares? You, that’s who! Or is that just compulsiveness on your part? If so I got a cure….

              Smoke some! It works if you work it!

              By-the-way, insulting me stopped shutting me up when I was four; nice try but just like the death penalty it’s no real deterrent…

              (0) 4 Total Votes - 2 up - 2 down
  2. L.A.RamsFan says:

    Mr. Cooper, this doesn’t surprise you does it? In country that condones, produces and replicates violence on every level is it any surprise we would take the likes of a fictional character and bring it to a level of legal precedence? Why not? To those of us who have had to deal with the legal system without the benefit of money, pedigry or connection(s) Lady Justice herself is a fictional character.

    (8) 24 Total Votes - 16 up - 8 down
  3. calcoastdan says:

    I read, and re-read this article, waiting for the point. I guess, if one searches hard, one could determine that the author is opposed to the death penalty, but never find the reasoning for the opposition.

    For the record, I am troubled with the death penalty, but when I read meaningless priveleged-guilt ramblings such as this, I have to question myself.

    (8) 20 Total Votes - 14 up - 6 down
  4. rukidding says:

    I would suggest that maybe the author take his wife and go east a bit one evening and stroll the streets of Salinas at night. If he survives another opinion may be noted.

    (15) 29 Total Votes - 22 up - 7 down

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