Court to consider the role of IQ tests in ban on executing people who are intellectually disabled

In 2002, the Supreme Court ruled in Atkins v. Virginia that the Constitution’s ban on cruel and unusual punishment bars the execution of people who are intellectually disabled. Next week, on Wednesday, Dec. 10, the Supreme Court will hear oral arguments in Hamm v. Smith on how and whether courts should assess a defendant’s claim under Atkins when he has taken multiple IQ tests. The state of Alabama contends that the lower court, in throwing out Joseph 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 counters 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. The case’s path to the justices has been a complicated one. Smith’s efforts to appeal his sentence and then seek post-conviction relief were unsuccessful in the state courts. He then went to federal court in Mobile, Alabama, where Senior U.S. District Judge Callie V.S. Granade threw out his sentence. In May 2023, the U.S. Court of Appeals for the 11th Circuit upheld Granade’s decision.    

The state then went to the Supreme Court, which considered the case at 22 consecutive conferences before ultimately sending it back to the 11th Circuit in November 2024 for the lower court to clarify its ruling. Justices Clarence Thomas and Neil Gorsuch indicated then that they would have taken up the case and heard oral arguments then, without waiting for the lower court to reconsider it. 

The case returned to the court of appeals, which once again concluded that Smith’s death sentence should be set aside. 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 stressed 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 ruling in Smith’s favor “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, the state asked the Supreme Court to intervene for a second time. In a brief, unsigned order in early June, the justices agreed to do so. They framed the question before them as “[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. 

In its brief on the merits, the state told the justices that in Atkins, the court observed that “state laws ‘generally’ immunize offenders known to have an IQ under 70,” but it did not provide any additional guidance on how broadly it applies. Since there are no Supreme Court cases governing this issue, Smith must show that there is a national consensus among the states that someone in his position cannot be executed. But there is no such consensus, because “the States have not coalesced around a single legislative approach to multiple IQ scores.” “If there is anything resembling a norm,” the state contended, “it is one that rejects Smith’s logic that ‘scores within the 70 to 75 range,’” standing alone, are enough to show that he has “significantly subaverage intellectual functioning (an IQ of 70 or below),” as Alabama law requires.

Alabama acknowledged that “some States have restricted the consideration of multiple IQ scores.” But, it cautioned, even those states do not agree on “how it should be done.” Although some states look at the lowest IQ score, it noted, others “have assigned greater weight to an offender’s highest score.”

But in any event, the state continued, the Supreme Court “can decline to expand the Eighth Amendment if it has ‘reason’ not to constitutionalize prevailing standards.” And in this case, it argued, nothing in the text or history of the Eighth Amendment requires the justices to adopt a rule “denying the cumulative effect of IQ scores.” The purpose of the Eighth Amendment’s ban on cruel and unusual punishment, the state wrote, was “to proscribe punishments ‘calculated to superadd terror, pain, or disgrace.’ But the point of considering IQ scores together is not to inflict suffering without penological reason, but to decide whether Smith qualifies for Atkins relief.”

Under the Eighth Amendment, the state wrote, federal courts should also “presume[] that a state sentence is ‘valid[].’” This deference is especially important in a case like this one, it added, because “‘[p]sychiatry is not … an exact science,’” and scientific standards are often subject to change.

At a minimum, the state concluded, Smith’s score of 78 on one IQ test forecloses his argument that he is intellectually disabled. “The Eighth Amendment,” it said, “does not bar the execution of a murderer who has a valid IQ score with a 95% confidence interval wholly above 70.”

The Trump administration filed a “friend of the court” brief supporting Alabama. “Similar to polling in an election,” U.S. Solicitor General D. John Sauer wrote, “multiple IQ test scores often produce a more accurate image than any single test score does in isolation. And nothing in this Court’s Eighth Amendment jurisprudence compels that courts blind themselves from looking at that complete picture, or forbids governments from setting up frameworks that require courts to perform such an analysis.”

In his brief on the merits, Smith contended that it is “undisputed” “that courts should assess multiple IQ scores holistically. The only dispute,” he wrote, “is whether that assessment should end, as [the state] suggests, with simply tallying up IQ scores above (and presumably also below) a certain threshold, or whether holistically assessing a person’s intellectual functioning in light of multiple IQ scores requires considering those scores in light of other evidence—particularly expert testimony—regarding the scores’ validity and meaning, and other evidence of the claimant’s intellectual functioning.” Both Alabama law and the Supreme Court’s decisions interpreting the Eighth Amendment, he argued, point to the latter option, which is “precisely” what the lower courts did.

Both of those courts, Smith emphasized, determined that it was “not clear,” based solely on his IQ scores, whether he “has substantially subaverage intellectual functioning.” Therefore, he said, they also looked at “‘additional evidence’” that would help them to make that determination, such as “neuropsychological testing and other evidence bearing on intellectual functioning, including, for example, Smith’s behavioral history, school records, and tests assessing verbal abstract reasoning skills, vocabulary, and other tests ‘correlated with intelligence.’”

This approach, Smith continued, is consistent with those of virtually all states, with the exception of Oklahoma, whose state laws “do not require courts to apply categorical rules when faced with multiple IQ scores, instead delegating to the fact finder the task of weighing all relevant evidence.” It is “also consistent with the standards employed by clinicians and diagnosticians,” he wrote. Moreover, he added, contrary to the state’s contention that medical standards can and do change, the “essential” factors that the medical community uses to diagnose an intellectual disability “‘have not changed significantly over the last 60 years.’”