Alabama wants to lower the bar for executing disabled people—if SCOTUS lets it

On Wednesday, the Supreme Court will hear oral arguments in Hamm v. Smith, a death penalty case that will decide whether intellectual disability can be ruled out on the basis of IQ tests alone.

Long before he was convicted of murder in 1997, Joseph Clifton Smith was placed in schooling for an intellectual disability. Smith had five documented IQ test scores by the time he was tried, all around the bottom five percent of the population—four of which, his legal team has argued, fall in the range of mild intellectual disability.

The state of Alabama disagrees: anyone scoring 70 or above on one test, its attorney general contends, is intelligent enough to execute. In 2022, the Eleventh Circuit Court of Appeals rejected that argument—setting the stage for a Supreme Court turnaround on IQ and capital punishment.

The Supreme Court has previously stated that IQ tests alone fail to holistically determine intellectual disability, in 2002’s Atkins v. Virginia—which also established that executing people with intellectual disabilities violated the Eighth Amendment—reaffirmed in 2014 in Hall v. Florida, and most recently in 2017’s Moore v. Texas. But Atkins and Hall were close decisions, and the Court’s conservative majority has since grown.

“It’s important to have a holistic assessment of the person,” said Shira Wakschlag, general counsel and senior executive officer for legal advocacy at The Arc, such as educational records and other documentation from childhood. IQ scores are a factor in determining intellectual disability, Wakschlag said, but they vary, and the tests don’t always offer consistent results.

An amicus brief from the American Psychological Association, American Psychiatric Association and Alabama Psychological Association in support of Smith’s case similarly argued that “because the diagnostic inquiry is necessarily holistic and requires the exercise of clinical judgment, no single datum—such as IQ test scores—is dispositive of intellectual functioning.” 

An October filing by Alabama’s Department of Corrections commissioner, John Q. Hamm, pushes for a very narrow definition of intellectual disability defined by an IQ below 70, and argues that “the ‘holistic’ rhetoric’ is ‘just window dressing’ for a novel and indefensible change in constitutional law.’”

“If you tilt your head just right and squint, and apply this particular statistical principle in isolation, without considering anything else, then you get the result that [Alabama] thinks you should get,” said University of New Mexico School of Law adjunct professor Ann Delpha, whose work focuses on intellectual disabilities and the justice system. “That’s not what intellectual disability is about.”

“The court has said repeatedly…at different times, that intellectual disability is determined through clinical judgment, through a comprehensive analysis,” Wakschlag said. “It is not a number.”

The Supreme Court’s decision to hear the case is perhaps unexpected, given the clear precedent in its rulings that IQ tests are not enough to establish intellectual disability, and may signal a likely break with precedent.

A decision that effectively overturns the Court’s past rulings on intellectual disability and the death penalty would encourage states to define down intellectual disability, and any safeguards that come with it, in their criminal justice systems—in line with a wider push, echoed by conservative proposals like the Heritage Foundation’s Project 2025, to strip disability protections from schools, workplaces, and other sites of public life.