Off Limits: Of Mice and Men And the Death Penalty Today

Image of the death penalty surviving in America

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.

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.

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 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. 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.”

Since 2004 courts in Texas have used Judge Cochran’s ill-considered Lennie standard to determine intellectual disability in capital punishment cases.

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,” he wrote. When judges do cite fictional works in judicial opinions, he continued, “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.

Citations to literature are extraordinarily rare in federal appellate court opinions, appearing in only 1 out of every 10,000 federal appellate cases.

John Steinbeck wrote much of Of Mice and Men at the Steinbeck family cottage in Pacific Grove, California. 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 About Stephen Cooper

Stephen Cooper is a John Steinbeck fan and full-time writer. Before moving to Woodland Hills, California, he served as a public defender in Alabama and Washington, D.C., experience that he uses in writing about legal issues, including the death penalty, for a variety of publications. Follow him @SteveCooperEsq.


  1. Wes Stillwagon says:

    I do not believe that Steinbeck harbored an opinion regarding the death penalty. I do not believe this was what inspired him to write Of Mice And Men. In spite of the emotions generated on both sides of the argument, Steinbeck was first and foremost a reporter able to coldly observe and lucidly describe what he observed free of passion or prejudice (non-teleogical or “is” cognition). His psychological type (Introverted Sensation/thinking, with perception primary) was perfect for such work. I do not believe Steinbeck wrote “Of Mice And Men” to support or demonstrate against the death penalty or its application on individuals who are intellectually challenged. Wasn’t his description of the somewhat botched hanging at San Quentin in “The Pasteur’s Of Heaven” accurate, believable, and objective?
    Related to executions of the intellectually challenged, no science or profession is less prepared to render a qualified opinion regarding an individual’s intellectual capacity for any reason especially related to penalty for capital crimes. Think about it–is there any field of study that considers itself a “science” less prepared to agree on psychological standards than psychology or psychiatry in the USA? Those with advanced degrees cannot even agree on the meanings of basic psychological terms. No unified lexicon exists in the field. Other natural sciences consider the field not a science for this reason. So judging who lives or dies based only on pretentious expertise in the fields of psychology or psychiatry will produce results only equal to a role of the dice.

  2. Wes your statement: “Steinbeck was first and foremost a reporter able to coldly observe and lucidly describe what he observed free of passion or prejudice (non-teleogical or “is” cognition)” is very insightful. One of the realizations that I had while construction of my theory of Social Ecology from Steinbeck’s work was that it was trustworthy. You could rely on his descriptions as based on solid observation. Work that does not have that quality is unreliable as to theory construction. In Steinbeck’s words: “The process is this–one puts down endless observations, questions and remarks. The number grows and grows. Eventually they all seem headed in one direction and then they whirl like sparks out of a bonfire. And then one day they seem to mean something.” He clearly was able to consistently separate observation from perception, a much needed quality in the world today

  3. Wes Stillwagon says:

    His honesty in writing was what endeared him for me, Jim. I am not the first one to note this as I read about Steinbeck’s “reporter” quality in a biographical paper or biography. It made complete sense to me given his and Ricketts’ non-teleogical thinking (cognition, it is not really “thinking” at all) preference. I remember when we were on Cannery Row and someone mentioned the intent of the city to acknowledge the location of “Wide Idas” bordello and that it was located on the corner between the Bear Flag and the marine research center. I knew this was not possible because Steinbeck located it to the left of the Bear Flag. The young couple in one of the “Row” books came out of Wide Ida’s and passed the Bear Flag on the way to the light. I knew Steinbeck’s description was accurate and Wide Ida’s was not the building on the corner before the turn up over the rail road tracks.
    I often think of the snippets of observations he stored in a cigar box over the years. He reported that he was able to run a intuitive thread through them following his meeting Ricketts and enjoying the gatherings in the early 1930s. I believe Carol Steinbeck should received some of the credit for his awakening here. I believe Joseph Campbell must’ve contributed as well.
    He was a highly evolved individual human who was true to his soul, perhaps more so than Ricketts, in my opinion.
    I always enjoy your wisdom.

  4. Indeed Steinbeck was right about Wide Ida’s as you so eloquently point out. The “intuitive thread” that you mention I believe is the source for his “gossamer threads of steel” concept that I have interpreted as the informal networks. Informal networks such as Steinbeck related to, unlike formal groups, are held together by these invisible gossamer threads of steel — the human face-to-face connection, the web, that makes life work and is invisible to the formal world.

  5. Wes Stillwagon says:

    In my opinion Sweet Thursday’s “gossamer threads of steel” were the dynamic bindings of the phalanx and in that capacity of greater importance than mere intuition since it’s only one of two psychological perception functions, the other being the senses. The threads of steel as Steinbeck used it was to describe the unconscious but potent emotional binding between the citizens of the Row. How much influence it has on individuals is inversely proportional to their adult maturity or evolvement (see the four levels of evolvement described elsewhere on this site). Re influence on the a complex, network, or gatherings, take for instance the recent presidential election won because of the gossamer threads of steel between the dull witted, civics ignorant, and racist white Americans who were seeking a father figure to make their problems, real and imagined, go away through the intercession of a pretend father figure (Trump). I am pretty sure that a candidate like Trump would have been laughed out of the little Norwegian town of “The Moon Is Down” where the citizens were very independent minded and highly evolved. The parallel between today’s dull-witted white dudes and the dull-witted and hungry Germans of the 1920s-1930s is striking. I believe if these dull-wits increase their influence, Steinbeck books will be banned from libraries. Furthermore you, Will Ray, and I will be wearing striped pajamas in a concentration camp.

  6. Paul Douglass says:

    Thank you, Stephen, for a strong and impassioned statement on this disturbing use of Lennie in the Texas courts. Lennie has been a lightning rod for a lot of unsettling public discussion about disability and the death penalty.
    The comments following are also thought-provoking and highly sensitive to Steinbeck’s work and his position as an artist. I might contradict Wes Stillwagon on one word: “coldly.” It seems to me that JS strove always to be lucid and step back from the judgements thaty flow from passion. But it seems to me he could never have written as he did about characters like Lennie, George, Doc, the Joad family, or the characters in any of his novels, from PASTURES OF HEAVEN on, had he not felt a deep sympathy for every human being, every animal, every form of life he describes.
    It isn’t from a position of “coldness” that he strove for objectivity. Instead, he wanted to kindle a sympathy in each of us through the objective presentation of living beings, in all their tangled excellence and flawed glory.
    I am not sure what JS believed about the death penalty. Perhaps he thought as some of us do that the State should have a monopoly on violence, but should NEVER take life. Perhaps he saw the death penalty as just another manifestation of human agony. Lennie isn’t a bad example to discuss if we want to talk about the social abyss of putting the truly “innocent” to death. What galls us, perhaps, about Judge Cochran’s statements is that she would wrest Lennie from our grasp and put him to work justifying a practice that joins the United States with China, Iran, and North Korea.

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