\n<\/p>\n
Alabama Deputy Solicitor general<\/span> Robert Overing approached the podium at the U.S. Supreme Court on a mission: to convince the justices that 55-year-old Joseph Clifton Smith should be put to death.<\/p>\n Never mind the two-day evidentiary hearing years earlier, which convinced a federal district judge that Smith had an intellectual disability \u2014 and that executing him would amount to cruel and unusual punishment. Never mind the three-judge panel of the 11th U.S. Circuit Court of Appeals that agreed. And never mind the decades of Supreme Court precedent contradicting Alabama\u2019s position. Today\u2019s Supreme Court was no longer bound by its own case law.<\/p>\n \u201cNothing in the Eighth Amendment bars the sentence Joseph Smith received for murdering Durk Van Dam nearly 30 years ago,\u201d Overing began. Although the landmark 2002 decision in Atkins v. Virginia<\/a> banned the execution of people with intellectual disabilities, Smith did not qualify. \u201cHe didn\u2019t come close to proving an IQ of 70 or below.\u201d<\/p>\n An IQ score of 70 has traditionally been considered a threshold for intellectual disability. Smith\u2019s scores hovered above that, ranging from 72 to 78. But under well-established clinical standards, this makes him a \u201cborderline\u201d case. Experts \u2014 and the Supreme Court itself \u2014 have long recognized that IQ tests have an inherent margin of error. And they have relied on an array of additional evidence to assess whether a person is intellectually disabled. As now-retired Justice Anthony Kennedy wrote over a decade ago in Hall v. Florida<\/a>, which explicitly struck down a rigid IQ requirement of 70, \u201cintellectual disability is a condition, not a number.\u201d<\/p>\n Under Atkins \u2014 and under Alabama law \u2014 decision-makers are bound by a three-part test: whether a person has limited intellectual functioning (determined in part by IQ); whether they struggle with \u201cadaptive\u201d functioning (the social and practical skills that make up day-to-day life); and whether those struggles manifested before the age of 18. The federal judges who ruled in Smith\u2019s favor had applied this very test. But Overing discounted this. He had an alternative narrative: The judges had gone rogue.<\/p>\n To help Smith escape execution, he argued, the judges plucked his lowest score and rounded down in his favor, then leaned on lesser evidence as proof of his intellectual limitations. \u201cThe sentence \u2018Smith\u2019s IQ is below 70\u2019 doesn\u2019t appear in the District Court\u2019s opinion, nor in the Court of Appeals opinion,\u201d he said. The courts \u201cchanged the standard.\u201d<\/p>\n \u201cWhat you\u2019ve done is shift this to be all about the IQ test in a way that is not supported by our case law.\u201d<\/p>\n<\/blockquote>\n<\/figure>\n \u201cIt seems to me that you<\/em> are actually changing the standard,\u201d Justice Ketanji Brown Jackson cut in. The court opinions didn\u2019t include \u201cIQ is below 70\u201d because that isn\u2019t the law. The first prong of the three-part test requires \u201ca showing of \u2018significant subaverage general intellectual functioning,\u2019\u201d she said. \u201cI think what you\u2019ve done is shift this to be all about the IQ test in a way that is not supported by our caselaw.\u201d<\/p>\n \u201cI\u2019m having a really hard time with this case,\u201d Justice Sonia Sotomayor said. Overing was accusing the lower courts of violating a standard that does not actually exist. The record<\/a> showed that the federal judges adhered to Supreme Court precedent. Hall invalidated the strict 70 IQ requirement. And a subsequent case, Moore v. Texas<\/a>, emphasized that states could not rely on outdated medical standards<\/a> to reject intellectual disability claims.<\/p>\n The lower federal courts followed the law. \u201cIt\u2019s exactly what we told people to do in Hall, it\u2019s exactly what we told people to do in Moore,\u201d Sotomayor said.<\/p>\n She then cut to the heart of the matter: \u201cWhat you\u2019re asking us to do is to undo those cases.\u201d<\/p>\n On paper, the<\/span> question in Hamm v. Smith<\/a> is narrow: \u201cWhether and how courts may consider the cumulative effect of multiple IQ scores\u201d in deciding whether a condemned prisoner has an intellectual disability.<\/p>\n This question has never been explicitly answered by the Supreme Court. But while Alabama insisted that judges nationwide are yearning for guidance, its appeal to the court was rooted less in questions of law than in political opportunism. In the Trump era<\/a>, the court has become a friendly forum for right-wing ideologues, with conservatives eagerly asking its supermajority<\/a> to dismantle any pesky legal precedents obstructing their agenda.<\/p>\n Before Wednesday\u2019s oral argument, it seemed likely the justices would find a way to give the state of Alabama what it wants. The only question was how far they might go. Some conservatives hoped they might take aim at the Eighth Amendment itself \u2014 specifically the long-standing principle that criminal punishments must be guided by \u201cthe evolving standards of decency that mark the progress of a maturing society.\u201d One amicus brief<\/a>, submitted on behalf of 18 Republican attorneys general, insisted that this framework must be dismantled. \u201cThe Court should never have told judges to chase after the country\u2019s \u2018evolving standards of decency,\u2019\u201d they wrote.<\/p>\n It is no secret that Justices Clarence Thomas and Samuel Alito agree with this sentiment. But the scene at the court suggested that Hamm may not be the case where they tear it all down. The two-hour oral argument<\/a> was mired in confusion over what, exactly, Alabama was talking about. \u201cI\u2019m confused,\u201d Justice Amy Coney Barrett told Overing at one point, echoing Sotomayor. \u201cIt doesn\u2019t seem like Alabama prohibits\u201d what the district court did in Smith\u2019s case.<\/p>\n When it came to the supposed question at hand \u2014 how to reconcile multiple IQ scores \u2014 Overing\u2019s proposed solutions were not exactly subtle. One option, he said, was to simply adopt the highest IQ score, \u201cbecause there are many ways that an IQ test can underestimate IQ if the offender is distracted, fatigued, ill or because of the incentive to avoid the death penalty.\u201d<\/p>\n \u201cYou can see why that might be regarded as a little results-oriented,\u201d Chief Justice John Roberts replied.<\/p>\n With a ruling not expected until next summer, Smith\u2019s life hangs in the balance. After decades facing execution, his journey to Washington shows how case law that evolved to reflect scientific understandings is now under siege at the court. It is also emblematic of the way in which conservatives are exploiting the high court\u2019s growing disregard for its own precedents and for federal courts trying to follow the law<\/a>.<\/p>\n <\/p>\n <\/p>\n Joseph Clifton Smith<\/span> had just gotten out of prison in November 1997 when he met a man named Larry Reid at a highway motel outside Mobile. The pair encountered a third man, Michigan carpenter Durk Van Dam, and decided to rob him. They lured him to a secluded spot and fatally beat him with his carpentry tools, some of which Smith later tried to sell at a pawn shop.<\/p>\n Smith was quickly arrested and gave two tape-recorded statements to police. At first he denied participating in the attack. But in a second interview, Smith implicated himself in the murder.<\/p>\n His 1998 trial was swift and stacked against him. The presiding judge was Chris Galanos<\/a>, a former Mobile County prosecutor who had prosecuted Smith for burglary just a few years earlier. Smith\u2019s defense lawyers called no witnesses during the guilt phase and largely conceded the version of events presented by the state. This was due, at least in part, to the paltry pay and meager investigative resources provided to court-appointed lawyers. <\/p>\n The jury convicted Smith in less than an hour.<\/p>\n At the time of Smith\u2019s trial, there was no prohibition on executing people with intellectual disabilities. The Supreme Court had refused to impose such a ban in its 1987 ruling in Penry v. Lynaugh<\/a>. But it ruled that a diagnosed intellectual disability could be used as mitigating evidence to persuade a jury to spare a defendant\u2019s life.<\/p>\n Smith\u2019s lawyers called Dr. James Chudy to testify at the sentencing phase. The psychologist traced Smith\u2019s struggles to the first grade, when Smith was described as a \u201cslow learner.\u201d In seventh grade, he was labeled \u201ceducable mentally retarded.\u201d Soon thereafter, Smith dropped out of school.<\/p>\n Chudy gave Smith an IQ test, which yielded a result of 72. According to Chudy, this placed Smith in the bottom 3 percent of the population intellectually. But he also explained that he had to consider \u201ca standard error of measurement of about three or four points.\u201d Thus, Smith\u2019s true IQ \u201ccould be as high as maybe a 75,\u201d Chudy testified. \u201cOn the other hand he could be as low as a 69.\u201d<\/p>\n Smith\u2019s disability was exacerbated by his harrowing family life, which was marked by severe poverty and abuse. The environment denied him the extra care he needed. As his trial lawyers later argued in a plea for mercy, \u201cHe came into the world with a very, very limited IQ. \u2026 He had no family support in that respect and that\u2019s how he came to be where he is.\u201d<\/p>\n But prosecutors urged jurors to apply \u201ccommon sense.\u201d \u201cThere are folks out there with marginal IQs who are street wise,\u201d one prosecutor said. \u201cThis man\u2019s been in prison, this man\u2019s been around.\u201d If jurors did not sentence Smith to die, he argued, they were saying the victim did not matter. \u201cThere was no value in his life and there was no meaning in his death.\u201d<\/p>\n Jurors recommended a death sentence by a vote of 11 to 1.<\/p>\n Smith had been on death row for three years when the U.S. Supreme Court announced that it would reconsider its decision in Penry. In the intervening years, numerous states had passed bans on executing people with intellectual disabilities. As the oral argument in Atkins approached, the Birmingham News ran a special report declaring that Alabama led the nation in the \u201cshameful practice.\u201d Defendants with intellectual disabilities were not only less culpable for their actions, they could be \u201ceasily misled and eager to win investigators\u2019 approval.\u201d<\/p>\n The following year, the Supreme Court handed down Atkins, officially prohibiting the execution of people with intellectual disabilities. Reacting to the decision, Alabama Attorney General Bill Pryor said he would follow the law. \u201cBut we will also be vigilant against those who would deceive the courts by claiming they are [intellectually disabled] when they\u2019re not.\u201d<\/p>\n The protections of<\/span> Atkins have never been guaranteed. The court left it to the states to decide how to enforce its ruling, prompting efforts to circumvent the decision altogether.<\/p>\n While to date Atkins has led some 144 people to be removed from death row, according to the Death Penalty Information Center<\/a>, others have been put to death<\/a> despite evidence that their executions were unconstitutional<\/a>. In 2025 alone, three men have been executed despite diagnoses of intellectual disability. One, Byron Black<\/a>, was executed in Tennessee, even after the current district attorney acknowledged that killing him would violate the law.<\/p>\n Since Atkins, Alabama has executed at least four people despite evidence of intellectual disability. All of them were represented by court-appointed attorneys who were denied the resources to properly defend their clients \u2014 and whose decisions sometimes made matters worse. In the case of Michael Brandon Samra<\/a>, who was executed in 2019, trial lawyers did not hire an expert to evaluate him. Instead, they told jurors the murder was rooted in his membership in a Satan-worshipping gang.<\/p>\n Smith spent years trying to challenge his death sentence under Atkins. After losing in state court, he was appointed lawyers with the Federal Defenders for the Middle District of Alabama, who filed a challenge in federal court arguing that Smith \u201csuffers from significant intellectual and adaptive limitations,\u201d only some of which were presented at trial. But they were up against onerous procedural barriers<\/a>. Alabama\u2019s Criminal Court of Appeals had rejected the evidence of Smith\u2019s intellectual disability \u2014 and a federal judge could only reverse the decision if it clearly violated the law. In 2013, U.S. District Court Judge Callie Granade ruled against Smith.<\/p>\n But that same year, the Supreme Court agreed to hear Hall v. Florida, which would strengthen the ruling in Atkins. The case centered on a man whose IQ scores ranged from 71 to 80. Because Florida law required a strict cutoff of 70, his appeals were rejected.<\/p>\n Famed Supreme Court litigator Seth Waxman delivered the oral argument<\/a> in Hall. He began by reiterating the three-part definition of intellectual disability used by experts and established in Atkins: a \u201csignificantly subaverage intellectual function concurrent with deficits in adaptive behavior with an onset before the age of 18.\u201d Because of the \u201cstandard error of measurement\u201d inherent in IQ tests, he said, \u201cit is universally accepted that persons with obtained scores of 71 to 75 can and often do have [an intellectual disability].\u201d<\/p>\n The argument grappled with the challenge of multiple IQ scores. There were no easy answers. When Florida\u2019s solicitor general argued that \u201cthe best measure of your true IQ is your obtained IQ test score,\u201d Justice Elena Kagan pushed back. \u201cThe ultimate determination here is whether somebody is [intellectually disabled],\u201d she said. IQ tests were not even a full piece of the three-part puzzle. \u201cWhat your cutoff does is it essentially says the inquiry has to stop there.\u201d<\/p>\n In 2014, the court struck down Florida\u2019s law by a vote of 5 to 4.<\/p>\n The next year, the 11th Circuit reversed the District Court\u2019s decision in Smith\u2019s case. The judges found<\/a> that Alabama\u2019s Court of Criminal Appeals had improperly relied on Smith\u2019s unadjusted IQ scores to conclude that there was no evidence of intellectual disability. The court sent the case back to Granade, who granted an evidentiary hearing.<\/p>\n Two months before the hearing, the U.S. Supreme Court handed down yet another decision bolstering Smith\u2019s case. The ruling in Moore v. Texas struck down Texas\u2019s peculiar method<\/a> for determining intellectual disability, which was rooted more in stereotypes than science. \u201cIn line with Hall,\u201d it read, \u201cwe require that courts \u2026 consider other evidence of intellectual disability where an individual\u2019s IQ score, adjusted for the test\u2019s standard error, falls within the clinically established range for intellectual-functioning deficits.\u201d<\/p>\n\n