On August 7th 2012, Texas executed a mentally retarded man named Marvin Wilson based on the results of a pseudo-psychological test known as the Briseño factors.

As you may know, executing people who are mentally retarded is considered a violation of the 8th amendment. There is a loophole, however. The federal government leaves it up to each state to decide what constitutes mental retardation. This is where the Briseño factors come in. The Briseño factors are Texas’s arbitrary, non-scientific way of determining the level a someone’s retardation. More importantly than that, they are based on the fictional character Lennie, from John Steinbeck’s novel “Of Mice and Men”. I wish I was kidding.

The argument for using a fictional book to determine if a person can be considered morally culpable for his or her actions goes as follows: Most people who have read Of Mice and Men think Lennie should not be held responsible for his terrible crime (if you have not read the book, do so. It’s great). Therefore, if a person has acted more rationally than Lennie, then that person is not mentally retarded enough to be exempt from execution. It’s that simple in Texas.

Here are some facts about Wilson: he was labeled mentally retarded by the only medical professional that was allowed to examine him, his IQ is 61, he took special education classes growing up, sucked his thumb into adulthood, he doesn’t know his left from his right, and he reads at a 2nd grade level. All of this point to a person who is not a fully moral agent.

Of course, Texas saw it differently. Rather than taking, say, his IQ into account, here is one of the questions asked in accordance with the Briseño factors:

“Did those who knew the defendant best during the developmental stage – his family, friends teachers, employers, authorities – think he was mentally retarded at that time, and, if so, act in accordance with that determination?”

In other words, “let’s ask some people with no medical background whether they thought Wilson is retarded, and let that trump anything experts say to the contrary”. It’s like a sad, real life version of the Mitch Hedberg AIDS joke: “I call my friend Brian and I say, ‘Hey Brian, do you know anyone who has AIDS? No? Cool, ’cause you know me.’”

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