Update, November 4, 2015: The Supreme Court granted a stay of execution to allow for an appeal

The state of Missouri is set to execute Ernest Johnson this evening despite evidence of an intellectual disability. Johnson was convicted of three murders committed in 1994. In 2002, the U.S. Supreme Court ruled that the execution of a person with an intellectual disability is unconstitutional.

The following year, the Missouri Supreme Court ordered a new sentencing for Johnson because evidence of his intellectual disability had not been adequately presented. Johnson’s IQ had been assessed at 77 at the age of eight and 63 at the age of 12.

Johnson struggled in school and was diagnosed with Fetal Alcohol Syndrome, which is associated with impaired intellectual functioning. He also suffered two head injuries as a child.

During the resentencing, Johnson’s lawyers presented two experts who testified that he had an intellectual disability that manifested before age 18 and an adaptive skills deficit in multiple areas. One of the experts assessed his IQ at 67, and a state psychometrist also assessed his IQ at 67. A score below 70 indicates a limitation in intellectual functioning.

The prosecutor argued that the burden of proof was on Johnson to prove that he had an intellectual disability and told jurors that it would be “an insult to these victims” to decide that Johnson had a disability. He was sentenced to death by the jury in 2006.

The U.S. Supreme Court’s 2002 ruling referred to clinical definitions of intellectual disability as a disability manifested before age 18 that is characterized by significant sub-average intellectual functioning, with limitations in two or more areas. However, the court left it to the states to develop “appropriate ways to enforce the constitutional restriction.”

“Johnson’s case highlights just how broken the capital punishment system is in the United States,” said Steven W. Hawkins, executive director of Amnesty International USA. “The death penalty is the ultimate cruel, inhuman and degrading punishment,” said Hawkins. “It’s even more outrageous when used against someone with strong evidence of an intellectual disability.”

Amnesty International USA opposes the death penalty in all cases without exception. As of today, 140 countries have abolished the death penalty in law or practice. The U.S. was one of only nine countries in the world that carried out executions each year between 2009 and 2013.