Court appears divided on whether lower courts properly found death row inmate to be intellectually disabled

The Supreme Court on Wednesday wrestled with the case of an Alabama man who has been on that state’s death row for more than two decades. The question before the justices was how the lower courts should have addressed Joseph Smith’s claim that he is intellectually disabled and therefore cannot be executed when Smith has taken five separate IQ tests over a span of almost 40 years. After roughly two hours of oral argument, the justices were divided over whether, as Smith contended, the lower courts had properly concluded, based on a wide range of evidence, that he is intellectually disabled.

Wednesday’s oral argument was the second time that the court considered an appeal from Alabama seeking to reinstate Smith’s death sentence. In August 2023, the state asked the justices to review a ruling from the U.S. Court of Appeals for the 11th Circuit that upheld a federal district judge’s decision throwing out Smith’s death sentence. More than a year later, in November 2024, the court sent the case back to the 11th Circuit for it to clarify how it had reached its decision. Justices Clarence Thomas and Neil Gorsuch indicated that they would have granted the state’s petition for review.

Less than two weeks later, the court of appeals reaffirmed its ruling that Smith’s death sentence should be set aside. Smith’s claim that he is intellectually disabled, and therefore cannot be executed under the Supreme Court’s 2002 ruling in Atkins v. Virginia, hinged in part on whether his IQ score was 70 or lower – which, in Alabama, exempts individuals from being eligible for the death penalty. The Supreme Court, the 11th Circuit wrote in the unsigned opinion, had asked it to clarify whether its determination that Smith has “significantly subaverage intellectual function” hinged on the fact that the margin of error for Smith’s lowest IQ score, 72, would result in an IQ score of 69, or whether it had instead taken “a holistic approach to multiple IQ scores that considers the relevant evidence, including as appropriate any relevant expert testimony.” The answer, the court of appeals said, was the latter.

Alabama returned to the Supreme Court in February of this year, asserting that the 11th Circuit based its analysis on Smith’s lowest IQ score. The state thus once again asked the justices to weigh in – which they agreed to do in early June.

Alabama’s principal deputy solicitor general, Robert Overing, told the justices on Wednesday that Smith had not “come close to proving an IQ of 70 or below.” In reaching a contrary conclusion, he argued, the lower courts had “changed the rules” and “expanded Atkins.” The Supreme Court, he contended, “should reverse that expansion.”

Representing the federal government, which filed a “friend of the court” brief supporting Alabama, Assistant to the U.S. Solicitor General Harry Graver told the justices that the court’s ruling in Atkins had “outsourced the definition of intellectual ability to the states,” giving them “significant discretion in defining what it means to be intellectually disabled and what a defendant must do to prove it. Alabama,” Graver said, “has exercised that discretion to require that” Smith “show his true IQ is likely 70 or below based on all relevant evidence, including his multiple IQ scores all above 70.”

Justice Sonia Sotomayor agreed that “[s]tates can define this the way they want. The problem here,” she posited, “is not what the State of Alabama is doing.” The problem, she told Overing, was that Alabama’s “own expert did exactly what you say is wrong. Your own expert said he had valid scores between 72 and 78 and he relied on all of the other indicia to determine that he believed this person wasn’t intellectually disabled.” Smith’s “experts,” Sotomayor continued, “concluded differently, and the district court credited” their conclusions.

Justice Amy Coney Barrett pressed Overing on a related point. “[I]t seems to me,” she said, “that Justice Sotomayor is right that there are some Alabama cases that do move on” to consider other evidence, such as adaptive functioning – that is, the skills that people learn to navigate their day-to-day lives. “And so what about the other indicia and what role do they play in Alabama law?”

Overing responded that since the Supreme Court’s 2014 decision in Hall v. Florida, holding that Florida could not rely only on a mandatory IQ score cut-off of 70 to determine who is intellectually disabled, “courts have been confused in Alabama and nationwide about what some of the dicta” – text in an opinion that is not central to the decision – “means.” But, Overing emphasized, “there is not a case in which that other evidence has ever trumped IQ in Alabama.”

Seth Waxman, who argued on Smith’s behalf, agreed with Sotomayor. He told the court that “Alabama law, like that of nearly all other states … requires courts to evaluate all probative evidence as to intellectual functioning offered by either side. That includes,” Waxman said, “evidence of intellectual functioning other than IQ test scores at least where a court, considering expert testimony, concludes that those scores alone don’t decide the issue.”

That is precisely, Waxman continued, what the lower courts did in Smith’s case, “by evaluating evidence of Smith’s significant impairment on other neuropsychological tests of intelligence,” as well as “[h]is grade school records, which showed that on every measure he was two to four years below grade average, culminating in a diagnosis of mental retardation [the term used at the time] in the seventh grade.”

Much of the discussion on Wednesday focused on trying to settle on a test for courts to use going forward to determine whether someone with multiple IQ scores is intellectually disabled. Justice Neil Gorsuch proposed one such test, which he attributed to Hall and the court’s decision in Moore v. Texas, in which the court held that states should rely on modern medical standards, rather than outdated ones, to make such determinations. Under Atkins, Gorsuch posited, states should have “a little leeway” to determine whether a defendant has substantial subaverage intellectual function “as long as they don’t treat a single score in the low 70s as decisive” and do not “use facts extraneous to IQ scores to outweigh a low score.”

Justice Elena Kagan offered another possible test. She suggested that, as a general rule, “if you have one score that brings you into the 70 minus range, that’s enough so that you have to … open the door to a person’s evidence” regarding adaptive functioning. Overing resisted that potential test, telling Kagan that “what happens in these cases is that courts don’t weigh the IQ evidence.” Instead, he contended, courts “simply move on from IQ. And so, once you open the door to this kind of balancing test, the second prong is really malleable, really amorphous, and we’re picking up disparate facts about someone’s life, self-reported or by biased reporters. And so that evidence is not disciplining the inquiry. It’s not adding more rigor to figuring out what the intelligence is.”

Justice Brett Kavanaugh, who could prove to be a key vote, expressed some skepticism about the state’s position. “[W]hat’s the logic or the rationale,” he asked Overing, “behind not having a district court or a trial court or a state court [to] have the ability … to go on and look at more?”

Graver advanced a slightly different test. In the government’s view, “[t]he problem … is not that the courts below simply looked at other evidence.” Instead, he said, the problem was that “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” – such as, in this case, the “multiple consistent IQ scores together.” To put it another way, he added, the question under Alabama law is whether “this other evidence [is] strong enough to drag down the collective weight of IQ” scores.

Justice Samuel Alito was dubious about the utility of the government’s rule. If, he asked Graver, a defendant who claims to be intellectually disabled “has to meet some concrete standard before the case can go on, will there not be greater consistency and predictability, and is that not one of the lodestars of the Court’s death penalty jurisprudence, as opposed to a situation where everything is up for grabs” and courts will make these determinations “on an individualized basis?”

But, in response to a question from Kavanaugh, Waxman indicated that he agreed “100 percent” with the federal government’s approach. “And the district court did nothing of the sort.” Waxman also agreed with the government that, in a scenario in which a defendant had multiple IQ scores that were well above 70 – for example, “four 90s and one 71” – the court would not necessarily have to look at additional evidence. The court could, Waxman suggested, hear expert testimony that leads it to conclude that the defendant’s IQ is sufficiently high that it doesn’t need to consider anything else.

A decision in the case is expected by late June or early July.