The US Supreme Court on Tuesday, December 10, heard oral arguments in Hamm vs. Smith, a capital case that could reshape how courts evaluate intellectual disability under Atkins v. Virginia and its progeny for purposes of the Eighth Amendment. Atkins prohibited the execution of “intellectually disabled” individuals under the Eighth Amendment after the Court applied its “evolving standards of decency” jurisprudence, which uses both objective and subjective tests to determine whether a particular punishment is “cruel and unusual.” For two hours in a packed courtroom, the Justices pressed counsel on how to treat multiple IQ scores, the role of adaptive functioning, and the dividing line between state discretion and federal constitutional minima.
At issue is whether Alabama and the Eleventh Circuit applied the cases of Atkins, Hall and Moore correctly, and if courts may consider (and if so, how) the cumulative effect of multiple IQ scores in assessing defendant Joseph Clifton Smith’s death sentence in light of his borderline IQ test scores. Robert M. Overing, Alabama’s Principal Deputy Solicitor General, argued that the lower courts wrongly expanded Atkins by treating Smith as intellectually disabled when, in his view, the record shows otherwise.
“Nothing in the Eighth Amendment bars the sentence Joseph Smith received for murdering Durk Van Dam nearly 30 years ago,” Overing began. “Atkins created an exception for offenders known to be intellectually disabled, but Smith is not. He didn’t come close to proving an IQ of 70 or below with scores of 75, 74, 72, 78, and 74.” He maintained that, properly understood, “the consistent evidence is that Smith’s IQ is above 70,” and that under Alabama law “it’s Smith’s burden to come with a method that proves that his IQ could — is likely below 70.”
Overing urged the Court to treat the “true” IQ threshold of 70 as a substantively meaningful line that states can use to define the first Atkins prong. He contended that courts may adopt “reasonably reliable methods” for handling multiple IQ scores, such as using the median, composite scores, overlapping confidence intervals, or even, in some circumstances, the highest score, and that if those methods point above 70, “his sentence does not violate Atkins.”
That framing drew immediate pushback from the liberal-leaning justices. Justice Ketanji Brown Jackson challenged Overing’s recasting of the Court’s precedents: “It seems to me that you are actually changing the standard. You’ve accused the district court and the court of appeals of doing so. But, in our case law, consistently, we’ve said that the first prong relates to a showing of ‘significant sub-average general intellectual functioning.’ The words ‘IQ score under 70’ does not appear. Those—that’s not the standard.” She emphasized that the Court has “allowed for evidence related to adaptive functioning to be taken into account when looking at intellectual functioning,” concluding, “what you’ve done is shift this to be all about the IQ test in a way that is not supported by our case law.”
Justice Jackson pressed on that the specific “five methods” and cumulative-effect theories being advanced at the Court were never squarely presented to the district court or Eleventh Circuit. “Are you saying that the district court erred by not evaluating this defendant in a way that he was never asked to do by the state below?” she asked Overing. When Alabama leaned on new “reasonably reliable methods” at this stage, Jackson responded that she did not see where those theories had been properly preserved: “How could we possibly reverse on the basis of these kinds of arguments that were not presented below?”
Justice Sonia Sotomayor was openly skeptical and, at times, visibly frustrated. She pressed Overing repeatedly for any Alabama or other state case that adopted his proposed “statistical method” requirement for the first prong, insisting he was offering a theory untethered to existing practice. “You haven’t pointed me to Perkins or any other court where the rule that you’re proposing has been adopted by Alabama,” she said. Later, she put the point more sharply: “I don’t see any state that defines intellectual disability this way. I certainly don’t see—or to prove it this way. I don’t see anything in Alabama’s law that suggests it’s following that rule. You’re making something wholesale up.”
Justice Sotomayor also emphasized stability and consensus in state practice since Hall and Moore, warning that adopting Alabama’s theory would “announce more confusion into an area where there’s pretty standard procedures.” In her view, “they do exactly what the district court did here”: examine the IQ scores with their standard errors, recognize when those ranges include 70, and then “consider other evidence of intellectual disability, including testimony regarding adaptive functions.”
Chief Justice Roberts and Justice Kavanaugh zeroed in on the apparent asymmetry in Alabama’s position. Chief Justice Roberts posed a hypothetical set of scores—69, 68, 69, 69, 75—and asked whether the State would still insist the burden remained on the defendant to propose a method and that the high score could control. When Overing suggested heavy reliance on the highest score, Roberts observed, “you can see why that might be regarded as a little results-oriented. When you have scores above 70, you want to average them and discount the—the one below, but when they’re all below, you don’t do that.”
Justice Brett Kavanaugh walked through the menu of methods in Alabama’s briefs, including median, overlapping error ranges, composite scores, averages, and high-score rules, and treated them as potential “safe harbors” for states under the Eighth Amendment. Overing agreed that, for example, “if the median is above 70,” a state could say “that’s it,” and that similar logic would apply where the overlapping confidence interval for clustered scores falls entirely above 70 or where a composite score does so.
By contrast, other conservative Justices showed openness to Alabama’s broader theory that Atkins leaves substantial room to the states, especially in the habeas issue. Justice Neil Gorsuch repeatedly brought the discussion back to federal habeas limits: “Can a federal habeas court grant relief without finding a violation of federal law or the federal Constitution in this case, the Eighth Amendment?” Overing answered no, stressing that “Smith has an Atkins claim, not a Perkins claim,” and that federal courts cannot grant relief simply because state law might be more lenient than the constitutional floor.
Justice Gorsuch suggested a clearer rule for applying the Atkins three-part test for intellectual disability: (1) significantly subaverage intellectual functioning, (2) significant deficits in adaptive functioning, and (3) onset before age 18. He proposed that, for the first prong (intellectual functioning), states can design their own procedures so long as: (1) they do not treat a single IQ score in the low 70s as conclusive, as Hall forbids, and (2) they do not use unrelated “real-world” facts to override a low IQ score, as Moore forbids. Overing agreed with that summary, adding one caveat: states must also handle the standard error of measurement (SEM) in IQ testing correctly.
The United States, represented by Harry Graver as amicus curiae in support of Alabama, largely tracked the State’s view that the lower courts misapplied both Alabama law and Atkins. “Under Atkins, states have significant discretion in defining what it means to be intellectually disabled and what a defendant must do to prove it,” Graver argued. “Alabama has exercised that discretion to require that Respondent show his true IQ is likely 70 or below based on all relevant evidence, including his multiple IQ scores all above 70. The courts below erred because they replaced that burden with some variant of a one-low-score rule. Everyone now agrees that such a rule is wrong.”
Pressed by Justice Sotomayor on Hall and Moore, Graver tried to distinguish between merely “moving on” to adaptive-functioning evidence and treating that secondary evidence as effectively dispositive. In his view, even when a low score with an SEM reaching 70 opens the door to further evidence, courts must “circle back and see if that secondary evidence was strong enough to drag down the IQ scores below the line set by Alabama law,” namely, the “multiple consistent IQ scores together.” He characterized the Eleventh Circuit and the district court as having swapped “a preponderance burden with a possibility burden.”
Respondent Joseph Smith was represented by Seth Waxman, who defended the Eleventh Circuit’s decision as both faithful to Alabama law and consistent with Hall and Moore. “The statutory standard in Alabama for prong 1 is substantially sub-average intellectual functioning,” Waxman explained. Courts sometimes use the shorthand “true IQ of 70 or below.” Still, he emphasized, “every court in Alabama and 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 argued that Alabama, like “nearly all other states,” requires courts to “evaluate all probative evidence as to intellectual functioning offered by either side,” not just IQ scores. In Smith’s case, he pointed to neuropsychological testing, school records showing that Smith was “two to four years below grade average” and was diagnosed with “mental retardation” in seventh grade, and other indicia of impaired functioning. He maintained that the district court did exactly what Hall and Moore require: considered the full range of IQ scores with their standard errors, then “continued the inquiry” by weighing adaptive-functioning and other intellectual-functioning evidence before finding Smith intellectually disabled.
Justice Alito, more active during the respondent’s argument, probed what role “national consensus” should play when much of the existing case law reflects courts’ attempts to interpret Hall and Moore, rather than freestanding legislative judgments. He also addressed the practicalities of a “safe harbor” rule based solely on IQ metrics, asking whether such a bright-line rule would yield greater consistency and predictability in capital litigation.
The argument ended without a clear signal of how the justices will rule, but the stakes could not be higher. For Smith, the Court’s decision is literally one of life and death: if it does not affirm the Eleventh Circuit’s grant of habeas relief, Alabama will likely execute him; if it does, he will almost certainly spend the rest of his life in prison. For the law more broadly, Hamm v. Smith forces the Court to decide not only whether the Eleventh Circuit misapplied Atkins and its progeny, but also how much discretion states have in defining and applying “significant subaverage intellectual functioning” in capital cases that feature multiple IQ scores and extensive life-history evidence.
At the same time, the case is a critical test of how courts handle expert testimony and clinical knowledge when judging the mental capacity of criminal defendants. The relationship between IQ testing and intellectual disability remains unsettled in the Court’s precedents, and Hamm v. Smith offers an opportunity either to clarify or further cloud that doctrine. A clearer, more clinically grounded standard could reshape the outcomes for many individuals on death row who, like Smith, occupy the same borderline range of intellectual functioning. A decision in Hamm v. Smith is expected by the end of the Term.
