Lane Florsheim explains how they get away with it despite a 2002 Supreme Court ruling, which found “that executing intellectually disabled individuals violated the Eighth Amendment’s ban on cruel and unusual punishment.” She writes that most “states have opted to use the clinical definition of intellectual disability” but “a number of states have established their own definitions, so that prisoners who test as intellectually disabled in one state could be eligible for execution in another”:
Texas, for example, uses a set of guidelines known as the Briseño factors, which consider whether people who knew the individual as a child think he was intellectually disabled and “act in accordance with that determination”; whether the individual carried out formulated plans or conducted himself impulsively; whether the individual can lie effectively; and whether his offense required forethought, planning, and complex execution, among other considerations. The Briseño factors, which were written by the Texas Court of Criminal Appeals, ask Texas citizens to compare the inmate to the character of Lennie from Of Mice and Men. “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],” they read. By implication, an individual who seems less impaired than the fictional character would not be exempt. The Briseño factors are not recognized by a single clinical or scientific body.
The Dish 