During oral arguments, the state's principal deputy solicitor general Robert Overing contended that the Eleventh Circuit wrongfully vacated the death sentence for convicted murderer Joseph Clifton Smith by concluding that the lowest of his five test scores showed a possibility that his IQ was under the state's cutoff of 70. This inappropriately "expanded" Atkins v. Virginia
, a 2002 U.S. Supreme Court case holding that executing people with intellectual disabilities violates the Eighth Amendment's ban on cruel and unusual punishment, he argued.The justices seemed hesitant to accept Overing's contentions that multiple test scores with a median over 70 should be dispositive, and that the highest score should be given greater weight because tests are more likely to underestimate a person's IQ than overestimate it.
"You can see why that might be regarded as a little results-oriented," Chief Justice John Roberts said, with Justice Brett Kavanaugh later agreeing.
The case tests states' ability to set strict IQ limitations for those sentenced to death under Atkins and progeny cases, including Hall v. Florida
and Moore v. Texas. The average IQ score is about 100. Smith's IQ test scores ranged from 72 to 78. Alabama argued that the lower courts did not appropriately analyze the multiple scores when they found that Smith's actual IQ could potentially be as low as 69 after adjusting for standard deviation.
In one exchange with Overing, Justice Ketanji Brown Jackson said the district court looked not only at the IQ scores, but at other evidence of adaptive functioning, which followed the high court's case law. "So ... let me ask you, why do you think that the test should be simply and solely IQ score cut off at 70?"
"IQ is originally how intellectual disability was defined as a condition, and it's always been the primary criterion," Overing replied. "And states are allowed to take the best evidence of intelligence and to make that the test."
Justice Jackson said that reducing intellectual disability to a single score seemed "misguided." She read from a brief submitted by the American Association of Intellectual and Developmental Disabilities, which said that aside from a complete analysis by qualified professionals, "there can be no single, mandatory empirical method for clinicians to use in considering multiple scores or in determining whether or not someone is intellectually disabled."
"Well, if there can be no one mandatory method, then it's up for states and their legislatures to decide," Overing said.
An Alabama jury convicted Smith of murdering a man with a hammer and saw during a robbery in 1997, recommending a death sentence, according to Alabama's petition. The Alabama Court of Criminal Appeals affirmed his sentence, and the Alabama Supreme Court and U.S. Supreme Court denied his petitions for writs of certiorari.
Smith later filed a habeas petition that included a claim under Atkins. An Alabama federal judge held a two-day evidentiary hearing on Smith's Atkins claim in 2015. In 2021, the district court granted Smith's habeas petition and vacated his death sentence.
The judge found that Smith's scores placed him at either "the low end of the borderline range of intelligence or at the high end of the required significantly subaverage intellectual functioning," and that the decision of whether he was fit for execution would hinge on whether Smith had deficits in adaptive behavior and whether his problems occurred during his developmental years.
Smith had presented testimony from relatives and school records showing he had been in special education and struggled in basic math, reading and writing.
Alabama appealed to the Eleventh Circuit, arguing that the district court had wrongfully put the burden on the state to prove Smith was not intellectually disabled, rather than requiring him to prove he was, and that the court made erroneous findings of fact without considering evidence he was not disabled. The state pointed to his 11th grade-level score on a reading comprehension test and expert opinions that he was not intellectually disabled.
To succeed under Atkins, defendants must satisfy three prongs: They must have a significant intellectual impairment; they must have significant deficits in adaptive functioning; and their disabilities must have manifested during their developmental periods.
The high court's 2014 opinion in Hall v. Florida further held that Florida's strict IQ test score cutoff failed to account for the standard error of measurement, and that those with borderline scores must be able to present additional evidence.
Alabama argued in its petition for writ of certiorari that the Eleventh Circuit "eviscerated the most important prong of Atkins" by holding that even the possibility of a 70 IQ satisfies the requirement, and then "injected evidence of adaptive evidence into the first prong."
A group of 19 states that allow the death penalty filed an amicus brief supporting Alabama's position. Those states include: Idaho, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and the Arizona state legislature. The federal government also backed Alabama's position.
On Wednesday, Harry Graver of the U.S. Department of Justice argued in support of Alabama.
"Under Atkins, states have significant discretion in defining what it means to be intellectually disabled and what a defendant must do to prove it," he said. However, he acknowledged that courts can consider evidence beyond IQ scores.
On behalf of Smith, Seth Waxman of WilmerHale argued that the district court correctly concluded that Smith's IQ test scores were close enough to the line to call for expert analyses and additional evidence.
"There's just no warrant for this court to announce a constitutional rule binding on all states that precludes consideration of evidence that Alabama and the other states and the medical community properly considers probative of intellectual functioning," he said.
Alabama is represented by Steve Marshall of the Office of the Alabama Attorney General and Edmund LaCour Jr., Robert Overing and Dylan Mauldin of the Office of the Alabama Solicitor General.
Smith is represented by Seth Waxman of WilmerHale, and Christine Freeman and Kacey Keeton of the Federal Defenders for the Middle District of Alabama.
The case is Hamm v. Smith, case number 24-872, in the Supreme Court of the United States.
--Editing by Kelly Duncan.
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