The Supreme Court on Thursday left in place a ruling by a federal appeals court in favor of an Alabama man who has been on that state’s death row for more than two decades. In a one-sentence, unsigned order, the court dismissed Alabama’s petition for review in Hamm v. Smith as “improvidently granted” – that is, without deciding it. That order leaves undisturbed a ruling by the U.S. Court of Appeals for the 11th Circuit holding that Joseph Smith is intellectually disabled and therefore cannot be executed.
The vote was effectively 5-4. Justice Samuel Alito wrote a 24-page dissent that Justice Clarence Thomas (who also wrote his own 16-page dissent) joined in full and Chief Justice John Roberts and Justice Neil Gorsuch joined in part. Justice Sonia Sotomayor wrote a 22-page concurring opinion, which was joined by Justice Ketanji Brown Jackson, agreeing with the decision to dismiss the case.
A quarter-century ago, in Atkins v. Virginia, the Supreme Court ruled that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of people who are intellectually disabled. The issue in Smith’s case was how and whether courts should assess a defendant’s claim under Atkins when he has taken multiple IQ tests.
The state of Alabama contended that the lower court, in throwing out Smith’s death sentence, focused too heavily on the individual results of each of Smith’s five IQ tests, when the cumulative effect of his IQ scores indicates that he is not intellectually disabled. Smith countered that the lower court did not rely on “a single IQ score” to reach its conclusion and instead looked at a broad array of evidence.
Smith was convicted and sentenced to death for the 1997 robbery and murder of Durk Van Dam. After Smith’s appeals in the state courts were unsuccessful, he went to federal court. In the wake of the court’s decision in Atkins, Smith argued that he was intellectually disabled and could not be executed. A federal district judge in Mobile, Alabama, threw out Smith’s death sentence, and the 11th Circuit upheld that ruling.
The state appealed to the Supreme Court, which in November 2024 sent the case back to the court of appeals for it to clarify the basis for its decision. Thomas and Gorsuch indicated then that they would have taken up the case and heard oral arguments then, without waiting for the lower court to weigh in.
When the case returned to the 11th Circuit, that court once again set aside Smith’s death sentence. Smith had obtained five IQ scores, ranging from 72 to 78, and his intellectual-disability claim hinged in part on whether his IQ was 70 or lower. The 11th Circuit emphasized that it had not thrown out Smith’s death sentence simply because the margin of error for his lowest IQ score (72) would put his IQ at 69. Instead, it said, it had upheld the district court’s decision that Smith is intellectually disabled “based on the complete record, including any relevant expert testimony.” The district court, the 11th Circuit stressed, was not clearly wrong (the standard for reviewing factual findings by the district court) when it found “that Smith suffered from significantly subaverage intellectual function, that he had significant and substantial deficits in adaptive behavior, and that he manifested those qualities before he turned 18.”
In February 2025, the state returned to the Supreme Court, again seeking to have the justices step in. In a brief, unsigned order in early June, the justices granted the state’s petition for review and agreed to decide “[w]hether and how courts may consider the cumulative effect of multiple IQ scores in assessing” a claim that a capital defendant is intellectually disabled and therefore cannot be executed.
The justices heard oral argument in December, but on Thursday they threw the case out without deciding it.
In Sotomayor’s view, the court was correct in dismissing the case. She noted that the litigants agreed on two important points. First, “the Eighth Amendment does not prescribe a single formula for weighing multiple IQ scores.” Second, under Atkins, states have the primary role in determining how to enforce that case’s ban on executing inmates with intellectual disabilities.
But what the litigation in the lower courts did not do, she continued, was focus on “how to consider multiple IQ scores,” and the lower courts in this case did not “specifically address[] whether a court must consider the ‘cumulative effect’ of Smith’s IQ scores by combining them using a specific method, or whether one method is better than another, or even how a court should go about deciding which method is preferable.”
Moreover, she continued, “it does not appear that a single state legislature or court or Federal Court of Appeals has adopted” the rule that Alabama now proposes, “nor has any adopted a rule prohibiting courts from assessing multiple scores holistically without combining them, just as the District Court did here.” Therefore, she concluded, the Supreme Court properly “exercise[d] caution and decline[d] to adopt any such rules now.”
In his solo dissent, Thomas argued that the court’s decision in Atkins is “demonstrably erroneous” and should be overruled altogether. He contended that the Eighth Amendment’s ban on cruel and unusual punishment applies only to methods of execution and does not extend to claims like Smith’s. “Nothing in our history, from 1791 to 2002,” when Atkins was decided, “suggests that there is anything unlawful about executing murderers now protected by Atkins—let alone one such as Smith who reads at an 11th-grade level and has never scored below 71 on a single IQ test.”
In his dissent, Alito outlined several different ways that courts could determine the “true” IQ score for a defendant who has taken multiple IQ tests – for example, calculating a “composite” score, using the median score, or having an expert witness determine a score. “Any one of these approaches provides a reasonable way to evaluate whether a defendant’s IQ is 70 or below in Atkins cases involving multiple scores. And when a court using a reasonable method concludes that a defendant’s ‘true’ IQ is above 70, it may reject an Atkins claim solely on that ground.”
In a part of his dissent that Roberts and Gorsuch did not join, Alito argued that the justices should reverse the 11th Circuit’s ruling in Smith’s favor and send the case back to the lower courts for them “to perform a proper analysis.”
Finally, Alito contended that the Supreme Court’s failure to decide Smith’s case “will have regrettable consequences. Without clear rules for determining when multiple IQ scores are dispositive, nearly every Atkins case will devolve into an amorphous, individualized determination of whether the defendant meets an imprecisely defined notion of ‘significantly subaverage intellectual functioning’ under which the role of IQ is not clearly articulated.” Such a “case-by-case approach without categorical IQ rules … runs contrary to Atkins’s very premise,” Alito wrote.
