Update 1/30/15 at 8:00 a.m.: Last night, Texas prison officials executed Robert Ladd for the brutal murder of Vicki Ann Garner. Ladd's time of death was 7:02 p.m., 27 minutes after officials administered lethal-injection drugs.

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Original Story

Barring a last-minute intervention from the U.S. Supreme Court, Texas will execute a man with an IQ score of 67 tonight.

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Robert Ladd is scheduled for execution by lethal injection at 6 p.m. Thursday for the 1996 murder of Vicki Ann Garner. This is despite the fact that the Supreme Court ruled in 2002 that executing a mentally disabled person for murder is unconstitutional. Stranger still, Texas has once again used standards derived from John Steinbeck's classic 1937 novella, Of Mice and Men, to justify executing a man that meets the clinical definition of intellectually disabled.

"Anywhere else in the country, Mr. Ladd's IQ of 67 would have meant a life sentence, not death," Brian Stull, Ladd's attorney, said in a statement. "But the Texas courts insist on severely misjudging his intellectual capacity, relying on standards for gauging intelligence crafted from 'Of Mice and Men' and other sources that have nothing to do with science or medicine. Robert Ladd's fate shouldn't depend on a novella."

And yet.

Texas has been executing people as fast as it can since the death penalty was reinstated in 1976. However, the question of whether or not anyone should be executing the intellectually disabled has come up a bit since then. The U.S. Supreme Court made a broad decision on the issue back in 2002 with Atkins v. Virginia. The high court ruled that executing an intellectually disabled person for murder was a violation of the Eighth Amendment which prohibits "cruel and unusual punishment."

Here's what Justice John Paul Stevens wrote in his opinion (and yes, they used the term "retarded" back then):

"Construing and applying the Eighth Amendment in the light of our 'evolving standards of decency,' we therefore conclude that such punishment is excessive and that the Constitution 'places a substantive restriction on the State's power to take the life' of a mentally retarded offender."

However, the Supremes left the actual definition of what constitutes intellectually disabled up to the states. In Texas, after the 2003 state legislature failed to lay out the rules that would clearly prevent the execution of intellectually disabled people convicted of murder, it fell to the Texas Court of Criminal Appeals to pin down the requirements. Judge Cathy Cochran was the one to write the opinion, and she came up with a doozy.

This is where Steinbeck enters the legal picture. Cochran was born in California and decades ago she and her husband lived in Monterrey near Cannery Row, the area that Steinbeck immortalized. Cochran started reading his books since she was living in the place that inspired so much of his writing. One of the books she picked up was, of course, Of Mice and Men.

For those who dozed off in high school English class, Of Mice and Men is the story of George, a vagabond ranch hand, and his friend Lennie, a mentally disabled giant of a man. George and Lennie travel together working and George struggles throughout the book to keep Lennie, who is fascinated with soft things and doesn't realize the damage he is capable of, from getting in trouble. Eventually this leads to an accidental murder and George finds Lennie hiding from a vigilante group. George knows the men will find his friend and will execute him, so he kills Lennie himself. It's a brutal, tragic and incredibly moving work of fiction, and it turns out that the story stayed with Cochran, though probably not in the way Steinbeck would have intended.

Cochran landed on the Court of Criminal Appeals in 2001. In 2004 she was working out how to apply the Supreme Court's Atkins ruling in Texas and she found herself thinking of Lennie, according to Life of the Law. She even mentions Lennie in the opinion she wrote in Ex Parte Briseño, the first Texas case post-Atkins that saw the court working out how to handle convicted murderers who might be intellectually disabled.

And for a second, it reads like she actually got the point of the book, but then she goes on:

"Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution. 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?"

Cochran concluded Texans would not want to exempt every convicted murderer with a low IQ from being executed. John Blume, a law professor at Cornell University who has studied how states have actually applied Atkins, says Cochran basically undid everything Atkins was supposed to do. "If you read the Briseño opinion itself it's clearly an attempt on its own terms to circumvent Atkins. It says we understand that the Supreme Court decided on Atkins but we have some room to operate here and we're going to use it."

So Cochran, in writing the opinion for the Court of Criminal Appeals, essentially took Atkins and worked around it to create new very flexible guidelines for the courts in Texas. She came up with what would come to be known as the Briseño Factors.

There are seven factors. Translated out of legalese, the Briseño Factors essentially mean a person who has tested as intellectually disabled but is still able to get an idea and follow through on it, or is not clearly being manipulated by others, or can handle a social situation without drooling, or is able to tell a lie and remember the lie long enough to keep telling it is mentally competent enough for execution. The same goes if he or she can talk coherently and was able to, you know, actually plan the crime in question.

Blume says that in practice the Briseño factors can undo almost any legal acknowledgment of intellectual disability, making Atkins just this side of worthless in preventing a mentally disabled person who may not entirely understand what they've done -- hence why the Briseño Factors are also known as the Lennie test -- from being executed.

Using the Lennie test almost anyone can be proved competent enough to be executed. "That's where Texas is really an outlier and where people really seem to lose when it comes to the adaptive functioning," Blume says. "The courts use the Briseño factors despite the fact that they are at odds with the clinical definition of intellectual disability, and when it comes to the Briseño factors it's almost impossible to win."

Translated into practical terms this workaround led to the execution of Marvin Wilson in 2012. Wilson was a man who sucked his thumb and who couldn't make change or use a phone book. He had an IQ of 61, but he had also held a job, married and had a child. Wilson was convicted in 1994 in the shooting death of Jerry Williams, 21, who had identified him to police as a drug dealer, according to the Huffington Post. Despite his low IQ the court system found that he should be executed according to the Lennie test since he was able to hold a job and marry, as Atlantic noted.

That was when Steinbeck's son Thomas Steinbeck found out that his father's work was being used as justification for executing convicted murderers with low IQs. He issued a statement vehemently decrying the entire thing. "To judge anything based on a piece of fiction, I think, is a stretch," he told Studio360 in 2013. "And I think it would've made my father extremely angry."

Thomas Steinbeck pointed out his father was decidedly against the death penalty. He noted that his father once told him that if you have to take another man's blood to make your point, you haven't thought out the question very thoroughly.

Last year, the Supreme Court made a more narrow decision on the issue in Hall v. Florida, ruling that states have to actually stick to the clinical definition of intellectual disability when measuring who can and can't be executed. However, this ruling has had virtually no apparent effect on how judges in Texas handle these cases, Blume says.

And the thing is lawmakers -- perhaps the ones who read Of Mice and Men and get how ridiculous it is that the state currently executing the most people in the country should cite this particular work to justify some of the most morally questionable executions -- have been trying to get the Lennie test replaced with actual state legislation for years.

State Sen. Rodney Ellis has been working on getting a bill passed outlining how to determine whether someone is mentally competent enough to be executed for more than a decade. The bill he filed in the 2013 legislative session never made it out of senate committee. "I've actually had to preside over executions when I was the acting governor in 1999 and 2000, so I know firsthand the importance of getting it absolutely right when it comes to the ultimate punishment," Ellis stated via email. "Texas' current system falls far short of that standard, so I hope that my 16 year quest to pass this bill is finally successful this session."

Ellis has already filed a similar bill for the 84th legislative session. Ellis says his bill is designed to get Texas away from the Lennie list and into line with, well, the law. "To ensure compliance with the Constitution, my bill would put in place a clear standard to determine whether a defendant is eligible for the death penalty." There's no telling if the bill will gain any traction this time around.

Either way time is running out for Ladd. Ladd was acknowledged in court as someone who met the clinical criteria of intellectually disabled, Blume says, but Briseño cancelled that consideration out, something that has often happened when it is applied in Texas.

Ladd, who previously pleaded guilty and served 14 years for killing his cousin and her two children in Dallas back in 1978, *raped, strangled and beat Vicki Ann Garner to death with a hammer in 1996. Garner was also intellectually disabled, according to the Daily Tribune. There's no question of Ladd's guilt, only of whether he ever possessed the mental capacity to understand what he was doing. Ladd's lawyers say he did not. After the Court of Criminal Appeals denied Ladd's death penalty appeal, his lawyers filed with the Supreme Court on Wednesday, asking them to step in.

At this point the entire issue is in the hands of the Supremes. If the Supreme Court doesn't make Texas stop using these standards to work around Atkins, Blume says it looks like Texas will keep using the Lennie test to allow the execution of the intellectually disabled. And so far there have been no signs of any change on the horizon in Texas courts. "They're continuing to apply these factors in state and federal courts in Texas and nobody says no. They've been in effect for a number of years and they've been used by judges in a lot of different courts," Blume says. "I'd like to think the legislature will do something, but that doesn't seem likely, so it will have to fall to the Supreme Court. Until the Supreme Court steps in and says no, you can't do this, they're going to keep doing it."

-- *Clarification 5:30 p.m.: For more details on the murder of Vickie Ann Garner see this story in the San Antonio Express-News.