Intellectual Disability, Geography, and a Life-or-Death Decision

On May 21, the U.S. Supreme Court issued a decision in Hamm v. Smith, a case being heavily watched by both criminal justice and disability rights advocates for its potential impact on convictions for individuals sentenced to death involving a determination of intellectual disability. 

But first, a bit of background: In Atkins v. Virginia in 2002, the Court decided that the Eighth Amendment prevents the execution of individuals determined to be intellectually disabled. However, the Court left open the “how” — the appropriate method or approach — for such a determination, leaving it for the states to decide. Since then, states have utilized a number of different approaches to determine intellectual disability. In 2014, Hall v. Florida challenged Florida’s law to use an IQ score of below 70 as a basis for the intellectual disability determination regardless of any other evidence. There the Court indicated that other evidence of intellectual disability could be demonstrated and used at the same time as IQ score, and that IQ shouldn’t be the only factor.

Back to Hamm v. Smith. The Court was meant to decide how to assess multiple IQ scores but ultimately dismissed the case as improvidently granted — meaning the Court said it shouldn’t have agreed to rule on the issue, thereby leaving it with the states. Although we don’t know why this happened, there are still some opinions that offer insight in Hamm v. Smith, and what the future might hold for this issue.

In a concurring opinion to the 5-4 decision to dismiss, Justice Sotomayor wrote that the Court does not have the essential expertise to decide how to determine intellectual disability when there are multiple IQ test scores involved — the very question the U.S. Supreme Court had decided to take up in this case. This corresponds to Justice Sotomayor’s position dissenting opinion in the Loper Bright Enterprises v. Raimundo case, where she advocated for stronger deference to agency expertise over reliance on judicial “expertise.”  

Justice Sotomayor also emphasized that all involved parties agreed that the Eighth Amendment’s ban on “cruel and usual punishment” bars the implementation of the death penalty on an intellectual disabled person. The parties also agreed that the Court has not previously adopted any particular approach to apply in cases with multiple IQ test scores.

Improvidently Granted?

One common rationale for why the Court may dismiss a case as improvidently granted is that the question was not advanced during the earlier stages at the district court and appellate court levels. This technicality appears to be the biggest reason why, according to Justice Sotomayor, the Court was ill-equipped to rule on the issue … because there had been no discussion during previous court cases of determining intellectual disability when multiple IQ scores are being considered. In other words, you can’t now raise the issue to the U.S. Supreme Court for the first time and expect an answer.

Clearly not all of the Justices agreed with dismissing the case, and several dissents offered other views. Of particular note is a dissenting opinion by Justice Alito who would have taken the issue on, writing that the Court was actually committing an injustice by not offering guidance on this issue. He cited that the Atkins decision moved from an individualized approach to a categorical one by barring the execution of those with intellectual disability. However, the decision didn’t define what that meant, effectively leaving it to the states to both define the category and the method of doing so.

The jurisprudence of the Court in this area has left many unanswered questions, according to Justice Alito. Specifically, the lack of guidance when trying to evaluate a situation where there are multiple IQ test scores has a formidable consequence. “Our failure to address this recurring question has led to confusion and unsound analysis in lower courts,” he wrote. 

In the end, Hamm v. Smith leaves the precedents in place as far as intellectual disability determination and the death penalty. But at what cost? While the adoption of a standard approach has its challenges, a lack of it potentially leaves a far greater risk — one that could be the difference between life and death for a person with an intellectual disability depending on the individual’s geographical location and the approach adopted by a particular state. This creates an unequal and inherently unjust legal framework. People with disabilities and their advocates have been fighting for — and very much deserve — a unified standard that still allows an individualized assessment of the individual, not just cherry-picking certain criteria like an IQ score to define intellectual disability. Because a person is more than a number.