Alabama Deputy Solicitor general Robert Overing approached the podium at the U.S. Supreme Court on a mission: to convince the justices that 55-year-old Joseph Clifton Smith should be put to death.
Never mind the two-day evidentiary hearing years earlier, which convinced a federal district judge that Smith had an intellectual disability — and that executing him would amount to cruel and unusual punishment. Never mind the three-judge panel of the 11th U.S. Circuit Court of Appeals that agreed. And never mind the decades of Supreme Court precedent contradicting Alabama’s position. Today’s Supreme Court was no longer bound by its own case law.
“Nothing in the Eighth Amendment bars the sentence Joseph Smith received for murdering Durk Van Dam nearly 30 years ago,” Overing began. Although the landmark 2002 decision in Atkins v. Virginia banned the execution of people with intellectual disabilities, Smith did not qualify. “He didn’t come close to proving an IQ of 70 or below.”
An IQ score of 70 has traditionally been considered a threshold for intellectual disability. Smith’s scores hovered above that, ranging from 72 to 78. But under well-established clinical standards, this makes him a “borderline” case. Experts — and the Supreme Court itself — have long recognized that IQ tests have an inherent margin of error. And they have relied on an array of additional evidence to assess whether a person is intellectually disabled. As now-retired Justice Anthony Kennedy wrote over a decade ago in Hall v. Florida, which explicitly struck down a rigid IQ requirement of 70, “intellectual disability is a condition, not a number.”
Under Atkins — and under Alabama law — decision-makers are bound by a three-part test: whether a person has limited intellectual functioning (determined in part by IQ); whether they struggle with “adaptive” functioning (the social and practical skills that make up day-to-day life); and whether those struggles manifested before the age of 18. The federal judges who ruled in Smith’s favor had applied this very test. But Overing discounted this. He had an alternative narrative: The judges had gone rogue.
To help Smith escape execution, he argued, the judges plucked his lowest score and rounded down in his favor, then leaned on lesser evidence as proof of his intellectual limitations. “The sentence ‘Smith’s IQ is below 70’ doesn’t appear in the District Court’s opinion, nor in the Court of Appeals opinion,” he said. The courts “changed the standard.”
“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.”
“It seems to me that you are actually changing the standard,” Justice Ketanji Brown Jackson cut in. The court opinions didn’t include “IQ is below 70” because that isn’t the law. The first prong of the three-part test requires “a showing of ‘significant subaverage general intellectual functioning,’” she said. “I think what you’ve done is shift this to be all about the IQ test in a way that is not supported by our caselaw.”
“I’m having a really hard time with this case,” Justice Sonia Sotomayor said.