Last week Texas executed Bobby Wayne Woods for the rape and murder of his girlfriend’s eleven year old daughter, Sarah Patterson.. He also abducted Sarah’s brother Cody and left him for dead in a cemetery. But Cody survived and testified at Woods’ trial.

In 2002 the Supreme Court ruled in Atkins v. Virginia that execution of the mentally retarded violated the Eighth Amendment’s ban on cruel and unusual punishment. The American Psychiatric Association defines a mildly retarded individual as one who has an intelligence level significantly below average, has a significant limitations in adaptive functioning in at least two basic area, and the onset of the problem accrued prior to the age of 18. Generally a person is considered to be mildly retarded if the IQ level is between 55 and 70. But the court did not set a hard line at an IQ of 70. It left the exact definition of retardation to be decided by the states. The Supreme Court held that to execute the retarded violates the “evolving standards of decency,” and therefore is cruel and unusual punishment.

Bobby Wayne Woods dropped out of school in seventh grades. He has been described as barely literate. His IQ has been tested many times, the first while he was in grade school. The results have varied considerably. The last two tests occurred while he was in prison and were commissioned by his defense team. They found him to have an IQ of 68 and 70 which considering the other factors indicate that he is mildly retarded under the Atkins criteria. However, earlier tests showed him to have a higher IQ. The highest reading being 80, well below average but not retarded. His attorneys argued that the earlier results should be disregarded due to the use of less modern techniques. Texas’ attorney general argued to the contrary the more recent results were done by his defense team and therefore must be suspicious. The Texas Courts and the United States Supreme Court which refuse to grant an emergency stay Thursday sided sided with the State of Texas.