Nearly a quarter century ago, in Atkins v. Virginia (2002), the Supreme Court held that it is unconstitutional to execute offenders with an intellectual disability. Next Wednesday, however, the Supreme Court will hear arguments in a new case, Hamm v. Smith, which tests whether the Court’s current Republican majority wishes to retain this limit on capital punishment.
The most likely outcome in Hamm is probably a decision giving states more leeway to execute people with marginal claims that they are intellectually disabled — “borderline” cases where clinicians might disagree on whether the offender should be diagnosed with an intellectual disability. But at least some members of the Court have signalled that they would like to go much further.
In Bucklew v. Precythe (2019), five Republican justices seemed to endorse a radical reshaping of the Court’s approach to the Eighth Amendment, which prohibits “cruel and unusual punishments.”
For about six decades, the Court has held that this amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as a particular punitive practice became less common and less accepted within modern American society, it stood on increasingly dubious constitutional ground. Atkins, for example, pointed to the “large number of States prohibiting the execution of [intellectually disabled] persons” to justify its conclusion that these individuals may not be killed by the state.
In Bucklew, however, Justice Neil Gorsuch’s majority opinion ignored this “evolving standards of decency” framework, instead suggesting that courts must ask whether a particular punishment had fallen out of favor “by the time of the founding.” While that distinction might seem esoteric, the implications are breathtaking.
Among other things, this historical approach would likely lead the Court to overrule past decisions holding that the Constitution forbids excessive punishments for relatively minor crimes. So jaywalkers, small-time drug offenders, or a driver who does not come to a complete stop at a “STOP” sign could all be sentenced to life in prison.
Though it’s not at all clear that a majority of the Court will go that far, it is very likely that the Eighth Amendment will emerge smaller from the Court’s decision in Hamm, potentially diminishing the legal protections against bizarre or excessive punishments that all Americans enjoy.
The Court’s right flank has criticized Atkins from the day it was decided, and that right flank now controls six seats on the nine-justice Court. It also doesn’t help that the death row inmate at the heart of Hamm’s claim that he is intellectually disabled is genuinely marginal.
So the Court won’t even have to reach very far to decide that he should be executed.
What is the specific issue before the Court in Hamm?
Joseph Clifton Smith was sentenced to death for a 1997 robbery and murder. He claims that he cannot constitutionally be executed because he has an intellectual disability.
Courts hearing Atkins claims are supposed to apply the clinical definition of intellectual disability, and one of three factors that clinicians look at when diagnosing an intellectually disabled patient is their IQ score. Broadly speaking, clinicians look for an IQ of 70 or below when diagnosing such a disability. Although, because IQ tests have a margin of error, recent editions of the diagnostic manual for mental disorders indicate that “a score of 65–75 (70 ± 5)” is often consistent with intellectual disability.
Smith has taken five IQ tests, and he scored 75, 74, 72, 78, and 74 on those tests.
Under current law, the fact that Smith has never scored below 70 on an IQ test is not fatal to his claim that he has an intellectual disability. A recent edition of the Diagnostic and Statistical Manual of Mental Disorders warns that someone “whose IQ score is somewhat above 65–75 may nevertheless have such substantial adaptive behavior problems…that the person’s actual functioning is clinically comparable to that of individuals with a lower IQ score.”
Similarly, the Supreme Court held in Hall v. Florida (2014) that “intellectual disability is a condition, not a number,” and thus states that wish to determine if a particular individual may be executed “must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number.”
Thus, despite Smith’s IQ scores, the lower federal courts that heard Hamm determined that Smith is intellectually disabled based on his “significant deficits in social/interpersonal skills, self-direction, independent home living, and functional academics.”
But Hall was also a 5-4 decision, and the majority included retired Justice Anthony Kennedy and the late Justice Ruth Bader Ginsburg, both of whom were replaced by Trump appointees. So it is far from clear whether the Court’s new majority will care what Hall had to say about the death penalty.
It’s also safe to say that Smith’s Atkins claim is far from a slam dunk. The tools that clinicians use to diagnose mental disorders are often imprecise, in part because they do not need to operate with mathematical precision. The actual differences between a child who has an IQ of 69 and a child with an IQ of 71 are quite small, and both children may be given nearly identical education plans while they are still in school — regardless of whether each is diagnosed with an intellectual disability.
But, because Atkins sets up a rigid binary between people who are intellectually disabled (and thus cannot be executed) and people who are not (and thus can be executed), Smith’s life depends on very small distinctions. And the Supreme Court can doom him by reaching the entirely plausible conclusion that he just barely qualifies as not disabled.
So how could the justices resolve this case?
To some extent, Hamm turns on a real tension within the Court’s current decisions applying Atkins. On the one hand, while Atkins did hold that executing intellectually disabled offenders is unconstitutional, it gave the governments in states where the death penalty is still legal a fair amount of leeway in how they implement this holding. “[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction” against executing the intellectually disabled, the Court said in Atkins.
More recent decisions, however, insist that states must follow clinical standards when determining which offenders are intellectually disabled. These rulings also warn that states must not be given too much control over this determination. “If the States were to have complete autonomy to define intellectual disability as they wished,” Hall warned, then “the Court’s decision in Atkins could become a nullity.”
Before Gorsuch joined the Court in 2017, the Court’s internal fights over Atkins frequently turned on this tension between deferring to states and ensuring that death penalty states use clinically rigorous standards. Dissenting in Hall, for example, Justice Samuel Alito accused the majority of striking “down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA).”
He argued that courts should look at “laws enacted by state legislatures” in death penalty states to determine whether states may use a particular method to determine if someone is intellectually disabled. Under Alito’s approach, each state should be allowed to decide how it determines who is intellectually disabled, unless a state uses a highly unusual method that is rejected by nearly every other state where the death penalty is legal.
In its brief to the justices in Hamm, Alabama, the state that sentenced Smith to death, similarly argues that courts should be more deferential to states in Atkins cases.
Yet, while Alito’s approach would likely enable states to undermine Atkins, Alito at least attempts to fit his preferred rule within the broader “evolving standards of decency” framework that the Court has applied in Eighth Amendment cases since the mid-20th century. Alito’s position is that courts should determine what these evolving standards are by looking at how pro-death penalty states actually apply the death penalty.
In Bucklew, however, Gorsuch took a much more radical approach.
Bucklew asked whether states may use a particular method of lethal injection that can cause inmates to feel a great deal of pain before they die. Gorsuch’s opinion holding that states could use this method did not explicitly overrule the Court’s previous decisions applying the “evolving standards” framework. Instead, it seems to exist in an entirely different legal universe — ignoring past decisions altogether to apply Gorsuch’s preferred historical approach.
Though Gorsuch did name some execution methods, such as “disemboweling” or “burning alive” which he does think are unconstitutional, he wrote that these methods are not allowed because “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’” Thus, the question was not whether a particular punishment is cruel and unusual today, but whether it was considered cruel and unusual nearly 250 years ago.
If the Court embraces this approach, it would likely mean the end of most modern-day restrictions on cruel or excessive punishments. Dissenting in Atkins, for example, Justice Antonin Scalia argued that only “severely or profoundly” intellectually disabled people are protected against execution. One of Scalia’s sources suggests that only people with an IQ of 25 or below are protected by the Eighth Amendment from execution.
More broadly, Scalia argued that the Eighth Amendment only forbids “always-and-everywhere ‘cruel’ punishments, such as the rack and the thumbscrew,” and does not prevent the government from imposing excessive punishments for minor crimes. If the Constitution permits the state to execute murderers, then it may also impose the death penalty for lesser offenses such as shoplifting or driving over the speed limit.
Hamm, in other words, does not simply threaten constitutional protections for people with intellectual disabilities. It could potentially revolutionize the Court’s approach to the Eighth Amendment and permit very steep penalties for very small crimes.
It is unclear whether the Court actually has five votes to bring about such a revolution. While all five justices who formed the majority in Bucklew remain on the bench, the Court hasn’t taken any systematic steps to dismantle the “evolving standards” framework since Bucklew was handed down in 2019. It’s possible that at least some members of the Bucklew majority joined Gorsuch’s opinion because they agreed with the result, while still harboring some qualms about his broader theory of the Eighth Amendment.
But, at the very least, it is unlikely that the justices took up Hamm because most of them are satisfied with the framework laid out in Hall.
