The Death Penalty in the OSCE Area–Background Paper 2019 can be seen as legalizinging torture124 and represents a challenge to the “evolving standards of decency”125 rationale that has previously governed Eighth Amendment jurisprudence. Unequal application of the death penalty In this reporting period, there were numerous examples of executions that raised the question of whether the death penalty is applied in a fair and non-discriminatory manner in the United States. As discussed above, the Washington Supreme Court found the state’s death penalty unconstitutional due to its racial bias and provided many case law examples to support their ruling.126 The unfair application of the death penalty not only affects racial minorities but also other groups who are, for varying reasons, marginalised in society.127 People with mental or intellectual disabilities were executed and under sentence of death during the reporting period.128 On 14 June 2018, the Kentucky Supreme Court found, in Woodall v. Commonwealth, that the test used to establish intellectual disability is outdated and unconstitutional under the Eighth Amendment.129 The court ruled that the requirement to show proof of an IQ score of 70 or below in order to find a defendant intellectually disabled, and therefore ineligible for the death penalty, violated recent United States Supreme Court judgements.130 It was pointed out that adjudication of intellectual disability should be “informed by the medical community’s diagnostic framework.”131 124  “The Supreme Court’s Conservatives Just Legalized Torture”, Slate, 1 April 2019, <https://slate.com/ news-and-politics/2019/04/supreme-court-neil-gorsuch-eighth-amendment-death-penalty-torture.html>, Garrett Epps, “Debunking the Court’s Latest Death-Penalty Obsession,”, 17 June 2019, <https://www.theatlantic.com/ideas/archive/2019/06/supreme-court-defends-death-penalty-again/591682/>, “When it comes to the death penalty, the Supreme Court legalized torture long ago”, The Intercept, 6 April 2019, <https://theintercept.com/2019/04/06/supreme-court-death-penalty-torture-bucklew/>. 125  See US Supreme Court judgement written by Chief Justice  Earl Warren in Trop v. Dulles, 31 March 1958, <https://www.law.cornell.edu/supremecourt/text/356/86>: “The (Eighth) Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” 126  State of Washington, Respondent, v. Allen Eugene Gregory, Appellant, Supreme Court of the State of Washington, op. cit., note 81, p. 23. 127  See Stephen Bright, “Imposition of the death penalty upon the poor, racial minorities, the intellectually disabled and the mentally ill”, in Moving Away from the Death Penalty: Argument, Trends and Perspectives, op. cit., note 9, pp. 115-130. See the case of Rocky Myers: “Despite Possible Innocence and Intellectual Disability, Alabama Intends to Execute Rocky Myers,” Death Penalty Information Center, 22 March 2019, <https://deathpenaltyinfo. org/news/despite-possible-innocence-and-intellectual-disability-alabama-intends-to-execute-rocky-myers.>. 128  Amnesty International, “Amnesty International Global Report: Death Sentences and Executions 2018”, op. cit., note 74, p. 12. 129  Robert Keith Woodall v. Commonwealth of Kentucky, Supreme Court of Kentucky, 14 June 2018, <https:// cases.justia.com/kentucky/supreme-court/2018-2017-sc-000171-mr.pdf?ts=1528984969>. 130  ���Kentucky Supreme Court Strikes Down Commonwealth’s Death-Penalty Intellectual Disability Law”, Death Penalty Information Center, 18 June 2018, https://deathpenaltyinfo.org/news/kentucky-supreme-court-strikes-down-commonwealths-death-penalty-intellectual-disability-law 131  Ibid. 30