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Twelve years ago, the U.S. Supreme Court ruled that people who are, quote, "mentally retarded" cannot be executed. But the justices weren't very clear about exactly who they were referring to. They're returning to this question today.

Here's NPR Legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: In 2002, the Supreme Court, in a case called Atkins versus Virginia, ruled that executing people who have retardation is unconstitutionally cruel and unusual punishment. But the justices left to the states the definition of retardation.

Now the court is focusing on what limits, if any, there are to those definitions. The case before the court involves the brutal murder of Karol Hurst, who was 21 years old and seven months pregnant when she was kidnapped, raped and killed by Freddie Lee Hall and an accomplice. Hall was sentenced to death, but after the Atkins decision, his lawyers challenged the sentence. They cited multiple diagnoses of hall as having mental retardation and quoted the state Supreme Court as having previously declared that hall had been, quote, "mentally retarded his entire life."

The state court, nonetheless, subsequently upheld Hall's death sentence on grounds that his IQ tests averaged over 70. Hall appealed to the U.S. Supreme Court, where the question today is whether states can establish a hard statistical cutoff for determining retardation. Florida's statute, as interpreted by the state Supreme Court, sets the definition of retardation at an IQ score of 70 or below. Anything higher, and the defendant cannot put on other evidence to show he has retardation.

Moreover, the state does not allow use of the standard error of measurement that's deemed inherent in IQ tests. Hall's various test scores added up to an average of more than 70, but no more than 75, meaning that he would qualify as having retardation if the state had used the standard five-point error of measurement. Without that statistical norm, however, Hall's lawyers were barred from putting on any other evidence of retardation.

JIM ELLIS: For example, in this case, school records from every year that he's in school, with school teachers identifying him as a person who had mental retardation.

TOTENBERG: Jim Ellis is a longtime advocate for the mentally disabled.

ELLIS: It is clear that Florida's position is inconsistent with the views of all the mental disability organizations and professional organizations that are involved in the definition of mental retardation.

TOTENBERG: To allow the state to define retardation in defiance of professional standards, he argues, is nothing more than a way to undo the Supreme Court's 2002 ruling. The Florida Attorney General's office declined to provide anyone to be interviewed for this story. In its legal brief, the state argues that Supreme Court, in 2002, did not require any particular clinical definition of retardation. Rather, the court relied on what it deemed to be a national consensus that executing people with retardation is cruel and unusual punishment. Kent Scheidegger of the Criminal Justice Legal Foundation underscores the point.

KENT SCHEIDEGGER: The consensus view as to persons who should be exempt from execution is not necessarily the same as the clinical definition.

TOTENBERG: In leaving the definition of retardation to the states, he argues, the Supreme Court understood that it was giving the states considerable leeway.

SCHEIDEGGER: The line separating retarded from not retarded is itself arbitrary. It is itself a matter of convention, and not science.

TOTENBERG: Florida is one of only five states that sets an inflexible line for determining retardation, and the results have been stark in those five. Only two claims of retardation have been successful in those states since 2002, according to a Cornell University study. That's about a 2 percent success rate, compared to a 28 percent success rate in the other states. Nina Totenberg, NPR News, Washington.

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