John Steinbeck gave the literary world a lovable simpleton in Lennie Small, the fulcrum of the Nobel Prize winner's classic 1937 novella "Of Mice and Men." Lennie was meant to be an archetype: the lumbering, guileless halfwit whose innocence was matched only by his intense loyalty and unmanageable physical strength.

He is one of Steinbeck's simplest characters, eliciting sympathy as few in the American literary oeuvre ever do. And perhaps it's this empathy that keeps "Of Mice and Men" on the syllabi of so many high school English courses, 75 years after its publication.
Now the character has been brought to the fore again, providing the baseline comparison that may send a mentally retarded convict named Marvin Wilson to his death Tuesday night.  

Lennie Small was never meant to set the legal definition of "mental retardation," the late novelist's son, Thomas Steinbeck, argues, and his father's fictional character has no place setting legal precedents in the real world of criminal justice and capital punishment. The state of Texas disagrees.

A snafu in a previous Supreme Court ruling will allow Wilson to be sent to his death, if his lawyers' petition for a stay of execution is ignored. And the whole ordeal bizarrely hinges upon Lennie Small, and what Steinbeck argues is a misguided and inaccurate interpretation of a fictional character in his father's seminal work.

"Prior to reading about Mr. Wilson's case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e., Lennie Small from 'Of Mice and Men,' as a benchmark to identify whether defendants with intellectual disability should live or die," Thomas Steinbeck said in a statement.

Wilson's attorneys asked the high court to put a stay of execution until Texas' controversial means of testing mental disabilities is properly challenged.

Wilson, now 54, was convicted in 1992 of murdering a police drug informant. During his stint in prison, he was subjected to a battery of tests to determine the borders of his mental limitations, including a 2004 report by Donald Trahan, a neuropsychologist from the Center for Behavioral Studies in Texas.  

Wilson's IQ of 61 puts him far below normal, with the literacy level of a 7-year-old. He cannot dress himself properly, match his socks, climb a ladder or mow a lawn.

"It is evident that the deficiencies in general intelligence and adaptive behavior have been present since early childhood and well before the age of 18," Trahan wrote. "My evaluation of Mr. Marvin Lee Wilson reveals that he does meet the criteria for a diagnosis of mild mental retardation."

The test results came two years after the Supreme Court ruled the execution of mentally retarded convicts was a breach of the Constitution's Eighth Amendment ban on excessive punishment in Atkins v. Virginia.

"The mentally retarded should be categorically excluded from execution," the court wrote in its decision, due to "their disabilities in areas of reasoning, judgment and control of their impulses."

The decision did not specify a definition for mental retardation, allowing states to set their own guidelines.

Texas, a state so execution-happy it accounts for one-third of the nation's trips to death row, took a back door to letting the mentally retarded continue to face the death penalty.

The Texas Court of Criminal Appeals set a threshold that ignores recognized medical testing while daring the Supreme Court to intervene.

It directly rebuked the Atkins decision in a 2004 ruling, decrying the Supreme Court's "categorical rule making such offenders ineligible for the death penalty," going so far as to deny the existence of "a 'mental retardation' bright-line exemption."

Instead, it concocted seven criteria called "Briseno factors," which were based upon the character Lennie Small.

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

In short, Texas' criteria allow the mentally retarded to remain on death row if a judge determines the crime was complex enough to require forethought, planning and intricate execution. Wilson met all the criteria. But it's the bit alluding to Lennie Small that upsets the Steinbecks.

"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 was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability," Thomas Steinbeck said.

"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 same 2004 ruling Texas used against Wilson has been the foundation of at least 10 mental retardation claims being rejected in other death penalty cases. It has been echoed by the U.S. Court of Appeals for the Fifth Circuit, which claims mental retardation cases are not grounds for staying executions.

Several factors could change Wilson's fate by 6 p.m. Central Time. The Supreme Court could offer a stay of execution, or a lower court could push back as well. Texas Gov. Rick Perry could also intervene -- though the prospect remains unlikely. He vetoed a bill that would have banned the execution of mentally retarded inmates in 2009.

Arguably the strangest part of the ordeal remains Wilson's very real similarities to Lennie Small, particularly in the facts his crime. Like Lennie, Wilson was one half of a duo. It left him susceptible to the direction of his accomplice. The main witness against Wilson was the accomplice's wife, who testified he admitted to the crime.

Steinbeck's own novel eerily describes Wilson's character -- and possibly Texas' obstinacy. A longer bit of dialogue spoken by Crooks, an ancillary character, reads, "He got nothing to tell him what's so an' what ain't so. Maybe if he sees somethin', he don't know whether it's right or not. He can't turn to some other guy and ast him if he sees it too. He can't tell. He got nothing to measure by."