Facing the U.S. Supreme Court on Wednesday morning, Alabama held firm that an inmate should be put to death despite multiple federal courts ruling he has an intellectual disability.
During lengthy questioning as they quizzed the state’s attorneys, the justices said the word “confused” often.
The remarks came in the case of Joseph Smith, an Alabama Death Row inmate who federal judges have repeatedly ruled has an intellectual disability and is ineligible for the death penalty. Alabama Attorney General Steve Marshall’s office appealed and asked the nation’s highest court to allow the state to execute Smith anyway.
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On a cold Wednesday morning in D.C., the nine justices listened to both sides and peppered the lawyers with questions, making the hearing stretch to about two hours.
Associate Justice Ketanji Brown Jackson repeatedly said she was confused about the Alabama attorney general’s argument, and that the argument had changed from the claims made in lower courts.
Other associate justices made similar remarks. “So, I’m having a really hard time with this case,” Sonia Sotomayor said.
Amy Coney Barrett, too, had issues understanding Alabama’s argument. “I’m confused,” she said at one point, reiterating that Alabama law for determining an intellectual disability seemed to have been followed.
And Neil Gorsuch added that while previous rulings allowed for leeway in deciding who has a disability, it seemed unlikely Alabama would be more lenient than federal law. The comment earned a few chuckles across the crowded courtroom.
Smith is currently sitting on Alabama’s Death Row for his role in the 1997 robbery and beating death of Durk Van Dam in Mobile County. Van Dam, of Michigan, was robbed of power tools, his shoes and less than $200.
Smith’s guilt wasn’t up for debate — the argument is over his punishment. Smith’s lawyers and the federal courts say he should be moved to spend the rest of his life in prison due to an intellectual disability. The state disagrees, saying his IQ is high enough to warrant the death penalty.
The state has complained that the cutoff for who has a disability has changed in court rulings. The state said in their briefings to the high court that clinical standards “mutate” and by relying on psychologists the court “guaranteed that the standards will ‘never stop’ evolving.”
Alabama’s lawyers say Smith’s true IQ is around a 75 or higher instead of 70 or below. The Supreme Court decided in 2002 in a case called Atkins that people with intellectual disabilities couldn’t face capital punishment, and an IQ score of 70 has long been thought of as the key threshold.
But professionals in the field say science is always evolving and IQ is not a simple matter of a single test score, especially when it comes to people near the cutoff for being considered to have an intellectual disability. And the Supreme Court has ruled in a previous case that a state can’t have a strict single IQ cutoff score of 70.
The latest edition of the manual used to diagnose mental disorders puts that score between 65 and 75.
Much of the conversation Wednesday focused on Atkins as a whole, technical definitions of intellectual disability and court precedent. And about an hour and 20 minutes of the two-hour hearing centered on the state’s side of the case.
Arguments
Alabama asked the court to clarify how courts should consider the cumulative effect of multiple IQ test scores and the relationship IQ plays to determining if a prisoner has an intellectual disability.
Smith has five IQ scores relevant to his case: A 75, 74, 72, 78, 74. The scores have been done over the years and on different tests. A federal judge in south Alabama said Smith had an intellectual disability, and the Eleventh Circuit Court of Appeals agreed twice.
Alabama Attorney General Steve Marshall sat at the front of the court at the counsel table on Wednesday, while Alabama Principal Deputy Solicitor General Robert Overing argued the case.
Associate Justices Brett Kavanaugh, Elena Kagan, Ketanji Brown Jackson, Sonia Sotomayor and Neil Gorsuch asked the most questions during the hearing, while Associate Justice Samuel Alito heavily pressed on Smith’s team.
Smith, who was not present at the arguments in Washington D.C., is represented by the Federal Defenders office in Montgomery. The lawyers hired DC-based attorney Seth Waxman, a former U.S. Solicitor General, to argue their case to the justices.
Overing began by saying that nothing in the Eighth Amendment barred Smith from being executed and that he “doesn’t come close” to having an intellectual disability.
“But the lower courts changed the rules,” he said from the podium.
He asked the justices, sitting feet away and clad in black robes, to give “meaningful ground rules” for how to determine if someone has an intellectual disability.
Within minutes, the questioning began.
Overing told Associate Justice Clarence Thomas that the burden for proving a disability fell on Smith. Overing said the highest IQ in a group of scores should be given more weight than lower scores, because an inmate could be trying to score low purposefully. Lower scores should be viewed with suspicion, he said.
“You can see why that might be regarded as a little results-oriented,” said Chief Justice John Roberts.
Overing told Kagan that adaptive functioning evidence was more subjective and harder to measure than IQ and that the standardized tests measured intelligence better.
Jackson appeared to take issue with the state’s argument.
“It seems to me that you are actually changing the standard,” she said, noting that Alabama wanted the Atkins rule to be solely about IQ and didn’t want Smith’s behavior to be taken into account.
Sotomayor asked multiple times for Overing to point to another case where there was a certain IQ threshold states could require, and said that Alabama wanted to undo previous case law.
But in a brief media statement outside the land’s highest court after the hearing, Overing said that was not true.
During his argument, Overing told Sotomayor that in Smith’s case, the courts wrongly picked the lowest score of five to determine Smith has an intellectual disability.
When considering Overing’s suggestions on how to analyze a “true IQ” from a grouping of test scores — he proposed using a median or average or using a technique to overlay scores and find a common range — Sotomayor disagreed.
“I don’t see any state that defines intellectual disability this way,” she said. “Or to prove it this way.”
“You’re making something wholesale up.”
Sotomayor continued that no case defines the rule as Alabama articulated it, and there were pretty standard procedures across states. “Name one court,” she repeatedly said. “Name one case.”
“It’s not Alabama’s burden,” Overing said, adding that Smith was the one who needed to prove he fell within the range.
Jackson said she was “a little confused all around.” The state asked for clarity for the cumulative effect of multiple IQ scores, but Jackson said the words ‘cumulative effect’ never appeared in the state’s previous arguments.
The assistant federal solicitor general joined in the argument in support of Alabama, but he strayed from Overing’s statement that IQ scores alone were sufficient for a court to decide on an intellectual disability claim without any evidence of adaptive behavior. He said a judge should consider if behavioral issues were enough to “pull down” an IQ score on the border of 70.
Alito tried to poke holes in the other side.
When Waxman, who was arguing for Smith, took the podium, he said that Alabama uses a standard definition of intellectual functioning and that courts have long said IQ scores alone can’t satisfy that requirement. But he was quickly interrupted by Alito, who hadn’t asked many questions during the state’s argument.
“Does the Eighth Amendment mean something different in Alabama?” asked the justice, rocking back in his chair.
Akins ruled that putting someone with an intellectual disability to death is barred by the Eighth Amendment — or the ban of cruel and unusual punishment.
After Waxman sat down, Overing gave a few minutes of rebuttal, where he turned to the 1998 jury in Smith’s case. They made the choice to send Smith to death row, Overing said, and they made that with information on Smith’s mental state. Their choice should be honored.
‘IQ can be the entire inquiry’
After the hearing, Marshall said he was pleased with the argument. When asked about the confusion in the case, Overing said the court has never answered how to look at multiple test scores.
“Unfortunately, because the court hasn’t given guidance in the last 10 years, courts around the country have been very confused and adopted new rules that don’t make a lot of sense, don’t follow the science, and don’t defer to state enforcement of criminal justice.”
There were tough questions on Wednesday, Overing said, and confusion about what was meant. “But in Alabama, and in other states, IQ can be the entire inquiry and we think that’s the constitutional rule as well.”
Wednesday was about providing clarity, Marshall reiterated.
“We’re not asking the court to undo what it’s done in the past,” Overing said.
And the state doesn’t want to execute the mildly disabled, Overing clarified. “We just disagree about how those rules apply in this case.”
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