Florida’s legal standard for measuring whether a convicted criminal is mentally retarded, and subsequently ineligible for the death penalty, may get tossed by the U.S. Supreme Court.

The high court heard a case this week that challenges the way Florida gauges a person’s intelligence when it comes to capital punishment. Based on the way oral arguments went, a majority of the justices may be inclined to rule against the state, according to The Washington Post.

Multiple justices reportedly had a problem with the state’s use of IQ tests and its failure to consider the margin of error in test results.

Justice Anthony Kennedy was said to be the most influential judge on the IQ question, given his repeated questioning of Florida’s lawyers for why the state adopted a hard cutoff for IQ scores.

Experts have said such tests can have a five-point margin of error.

“Your rule prevents us from getting a better understanding of whether that IQ score is accurate or not,” Kennedy said.

Another concern was whether Florida’s intention in adopting the standard was to make more murderers eligible for the death penalty.

The court ruled in 2002 that executing the mentally retarded violated the Constitution’s prohibition against cruel and unusual punishment.

The ruling could impact not only Florida but a handful of other states that use a strict cutoff on IQ results to determine if someone is intellectually disabled. That cutoff is usually any score above 70.

The American Bar Association has come out against Florida’s standard, saying if it is upheld by the Supreme Court, the state might end up executing inmates who are in fact mentally retarded.

The case being discussed involves Freddie Lee Hall, 68, and an accomplice, Mack Ruffin, who kidnapped, raped, and killed 21-year-old Karol Hurst, a pregnant woman. The men also killed police officer Lonnie Coburn in another incident. Hall has spent more than half his life on death row for the crimes. Ruffin, after first getting the death penalty, had his sentence thrown out on the grounds of unconstitutional jury instruction and the U.S. Supreme Court refused to reinstate it; he was resentenced in 1990 and is now serving life in prison.

Hall’s attorneys have claimed for decades that he should be spared because he is mentally retarded. Florida contends that he has scored above 70 several times.

-Noel Brinkerhoff

To Learn More:

Supreme Court Justices Question Strict IQ Standard for Florida’s Death Row (by Robert Barnes, Washington Post)

Supreme Court Weighs IQ Test in Fla. Death Penalty Case (by Michael Doyle, McClatchy DC)

Update on Georgia’s Imminent Execution of Man Deemed Mentally Disabled (by Laura S. Burstein, AllGov)

Despite Supreme Court Ruling, Texas Still Executes Mentally Disabled (by Noel Brinkerhoff, AllGov)