The Supreme Court on Wednesday wrestled with whether to allow Alabama to execute a man with low cognitive function, a ruling that could set new rules for states to condemn those with borderline intellectual disabilities to death row.
Roughly two hours of intense arguments did not seem to produce a consensus among the justices over how states should assess IQ tests to determine mental disability.
In a landmark 2002 ruling Atkins v. Virginia, the court decided that sentencing a mentally disabled person to death violated the Eighth Amendment’s prohibition on “cruel and unusual punishment,” but left it up to states to come up with standards for determining who is too disabled.
Since then, the rules states have used to determine who is ineligible for the death penalty have come before the court several times, in part because many death row inmates skirt the line of intellectual disability.
In the current case, Alabama is asking the court to cut back on protections that those previous rulings have given to those who have borderline intellectual disabilities. The case involves how lower courts weighed Alabama’s use of multiple IQ tests to decide Joseph Clifton Smith should face death for robbing and killing a man in 1997.
Under Alabama’s death penalty rules, a defendant is ineligible for the death penalty if he or she has an IQ at or below 70 and significant deficits in everyday skills and those issues occurred before adulthood. Many states have similar IQ thresholds.
In Wednesday’s argument, Robert M. Overing, deputy solicitor general for Alabama, told the justices that lower courts, which threw out Smith’s death sentence, had placed too much weight on a single low IQ score and additional evidence of impairment, rather than considering the cumulative results of five tests that placed Smith above the IQ cutoff. He said the latter was a more accurate yardstick for his abilities.
“He didn’t come close to proving an IQ of 70 or below … but the lower courts changed the rules,” Overing said.
The court’s three liberal justices expressed skepticism the law required lower courts to consider the cumulative effect of multiple scores as Overing suggested.
In previous rulings, the high court said defendants were permitted to offer additional evidence of cognitive impairment if IQ scores fell below the threshold, but Overing downplayed that idea. That drew rebukes from the liberals as well as questions from conservative Justice Brett M. Kavanaugh.
“What you’ve done is shift this to be all about the IQ test, which is not supported by our case law,” Justice Ketanji Brown Jackson told Overing.
Kavanaugh asked at another point about additional evidence: “What’s the logic or the rationale or the sense behind not having a district court or a trial court or a state court have the ability in those circumstances to go on and look at more?” he asked.
Justice Neil M. Gorsuch floated the idea of a ruling that would allow states to set the threshold for a claim of mental disability, but not allow eligibility to turn solely on a single IQ test score. Any additional evidence of impairment would not be allowed to outweigh a low test score.
But there was little agreement among the justices as they groped for the proper standard.
Smith’s murder case began in 1997, while he was on work release from prison. Smith and an accomplice robbed a man of $140 and killed him. A jury convicted Smith of capital murder during a robbery and sentenced him to death.
After the court’s 2002 decision in the Atkins case, Smith filed a petition in federal court arguing his intellectual disability met the criteria to bar his execution. The case has gone back and forth in the lower courts ever since.
During an evidentiary hearing, testimony revealed Smith had scored 75, 74, 72, 78 and 74 on IQ tests over the course of his lifetime. Those were the scores Overing, the lawyer for Alabama, pointed to in arguing that the cumulative effect of the tests placed Smith slightly above the state’s IQ cutoff.
The federal district judge considering the case, however, pointed to the test on which Smith scored 72, saying it indicated his IQ could be as low as 69, since the test had a three-point error range. For that reason, the court allowed Smith to present additional evidence of his impairment to assess his cognitive function.
In seventh grade, Smith’s school classified him as “Educable Mentally Retarded,” meaning he had mild intellectual disability. Smith never consistently held a job, never had a bank account and had difficulty following laws, according to testimony in the lower court hearings. He also acted impulsively, and read and did math at a low level.
The court determined Smith’s “actual functioning” was comparable to someone who was intellectually disabled so he couldn’t be sentenced to death.
After an appeals court ruled in Smith’s favor, Alabama appealed to the Supreme Court. The high court vacated the decision, asking the appeals court to clarify whether its ruling was based solely on one low IQ score or had considered other evidence and expert testimony.
The appeals court once again found Smith was intellectually disabled and said its decision was based on a holistic approach that considered Smith’s deficits in everyday skills along with the IQ score of 72. Alabama again appealed to the Supreme Court, which agreed to take up the case it heard Wednesday.
Seth P. Waxman, an attorney for Smith, said the lower courts had not erred in their assessment of Smith and it was proper to consider additional evidence of his impairment.
“Every court in Alabama … this court and every other court in every other state that I am aware of understands that raw observed test scores is not the definition of true IQ,” Waxman said.
But Harry Graver, an attorney for the Trump administration, which backed Alabama’s position, said the lower court did not give proper weight to the multiple IQ scores.
“Even if you look at other evidence, you still need to circle back and see how that weighs against the evidence on the other side of the scale,” Graver said.
Smith’s case is not the first time the Supreme Court has tackled intellectual disability and the death penalty.
In a 2014 case from Florida and a 2019 case from Texas, the high court noted that IQ tests are not precise. In the 2019 case, the court specifically said that lower courts needed to consider the possible error range in IQ scores.
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