“the case of Hernandez v. Stephens was one of thousands denied review by the Supreme Court this past term, that it received next to no media attention is deeply puzzling.

The case involved a Mexican-born illegal immigrant named Ramiro Hernandez who was convicted in a Texas court in 2000 for the murder of his employer and the rape of his employer’s wife. After he was sentenced to death, he appealed on the grounds that he was mentally retarded. Hernandez’s lawyers argued that because IQ tests taken prior to trial showed his IQ to be a mere 62, within the standard definition of mental retardation, his execution would be unconstitutional under the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

This so-called “Atkins claim” by the defense, named after the 2002 case of Atkins v. Virginia, was rejected by the Fifth Circuit. They accepted the prosecution’s rather astonishing argument that although Hernandez’s IQ was low compared to “American norms,” when “scaled to Mexican norms” it should be adjusted upward. When assessed according to his “cultural group”, they argued, his results should be closer to 70, a level just outside the definition of mental retardation.

As a result, this past April, Mr. Hernandez was executed. Attorneys filing a brief on Mr. Hernandez’s behalf claim this “race-based” approach to IQ violated the Equal Protection Clause of the Fourteenth Amendment.”

The problem with this is what do we do with a nation of blacks and hispanics who at least half will score below 70? The case of a black woman whose husband was murdered comes to mind. The point wasnt the murder, it was that she was living in upscale DC housing, a nice townhouse. Turns out, both qualified for disability for being “learning disabled” based on their IQs which were normal for blacks.

It’s a dangerous game we are playing as a nation