As the death penalty becomes rarer and more concentrated in a few parts of the country, the states that continue to employ it are resorting to more desperate schemes to kill people.
In January, for the third time in as many months, Missouri executed an inmate whose appeals were still pending. (A federal appellate judge wrote that he was "alarmed" by the state's conduct.)
Meanwhile, several states are refusing to disclose where they are buying the execution drugs they use, which come from unregulated compounding pharmacies.
And while the Supreme Court categorically banned the execution of people with intellectual disabilities as unconstitutional in 2002, some states continue to defy that principle by interpreting the court's words as narrowly as possible. In that case, Atkins v. Virginia, the court said reduced mental capacity made a defendant less culpable, but left it to states to enforce the ruling.
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On Monday, the court heard oral arguments in a case challenging Florida's attempt to get around the 2002 decision by requiring intellectual disability to be proved by an IQ score of 70 or less, even though the test includes a margin of error of 5 points.
The defendant, Freddie Lee Hall, was sentenced to death in 1978 for murdering a pregnant woman named Karol Hurst. Over the years, Hall has scored between 69 and 80 on IQ tests.
In 1991, a Florida court heard expert testimony and found that Hall has been "mentally retarded his entire life," but upheld his sentence because capital punishment was not yet prohibited in such cases.
After the 2002 Atkins decision, Hall seemed to have a strong case that he was ineligible for execution. Yet Florida kept him on death row because he had IQ scores higher than 70.
This reasoning runs counter to the consensus among mental-health professionals, who see IQ tests as approximate, incomplete measures and reject strict cutoffs in reading the results.
It also goes against the Supreme Court's ruling, which relied on a multipronged clinical definition of intellectual disability that considers limitations in adaptive functioning, like interpersonal skills and self-care. Under Florida's law, none of that matters if a defendant scores higher than 70.
Several justices appeared skeptical of that rigid approach. "Your rule prevents us from getting a better understanding of whether that IQ score is accurate or not," Justice Anthony Kennedy told the state's attorney. "We cannot even reach the adaptive functioning prong."
Justice Elena Kagan asked why Florida refuses to consider the margin of error, even though state officials don't dispute that it is part of any test-score interpretation.
The lawyer for the state responded that using accepted scientific practice "would double the number of people who are eligible" to be exempt from execution. "And that's inconsistent with Florida's purposes," he said.
Florida's purpose, in other words, is not to comply with the Supreme Court's ruling, but to execute its death-row inmates whether or not they are intellectually disabled.
The court rejected that practice once. It should do so again, unequivocally, for those states that missed the message the first time.