Hamm v. Smith and the future of capital punishment

Capital Matters is a recurring series by Jordan Steiker that covers federal constitutional regulation of the death penalty and federal habeas review of state criminal convictions and sentences. 

At first blush, it is hard to imagine why a case like Hamm v. Smith, argued earlier this month, has occupied so much attention from the Supreme Court. On close examination, however, the case is about litigating within an important constitutional paradigm that is hanging by a thread.

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Hamm v. Smith concerns whether Joseph Clifton Smith has an intellectual disability so as to exempt him from the death penalty under 2003’s Atkins v. Virginia, which deemed such executions cruel and unusual punishment. Smith was tried pre-Atkins and sentenced to death over 25 years ago. After Atkins, the Alabama courts rejected his intellectual-disability claim in a cursory manner, denying Smith’s request for discovery and an evidentiary hearing. The U.S. Court of Appeals for the 11th Circuit concluded that Alabama’s resolution of Smith’s claim was unreasonable and sent his case back to the district court, which found, after an evidentiary hearing, that Smith had established his intellectual disability by a preponderance of the evidence and was exempt from the death penalty. The 11th Circuit affirmed. 

The most contentious issue in the case is the district court’s conclusion that Smith had satisfied the first prong of the standard three-prong test for intellectual disability: significantly sub-average intellectual functioning. Clinicians typically require an IQ score of 70 or below – two standard deviations from the mean – to satisfy the first prong. But clinicians also recognize a standard error of measurement, such that a score just above 70 could reflect a true score of 70 or below. And the Supreme Court previously reversed a state court’s denial of an Atkins claim where the state had a firm rule requiring an IQ score of 70 or below to receive relief. In Smith’s case, there were five scores ranging from 72 to 78 from tests administered at various points in Smith’s life. The district court found that the scores were not dispositive, so it considered evidence of Smith’s adaptive behavior and ultimately concluded that Smith’s scores together with his significant deficits warranted an affirmative finding that he had significantly sub-average intellectual functioning.

This fact-intensive dispute seemed an unlikely candidate for Supreme Court review.  And yet, two years ago, after the court of appeals held that the district court’s finding of intellectual disability was not clearly erroneous, Alabama sought just that. The state’s petition purported to find a conflict among the courts of appeals by claiming that the district court had adopted a rule of considering only the lowest IQ score in assessing intellectual functioning in cases involving multiple IQ scores, insisting that other courts required consideration of all the scores. But the tenor of the petition suggested that more was at stake than how to gauge intellectual functioning. The state took aim at Atkins itself, stating that the decision, as well as the court’s entire Eighth Amendment framework on which Atkins was based, rests on a “dubious methodology.” 

Specifically, Alabama lamented the effort to discern “evolving standards of decency,” which has been the touchstone of how to apply the Eighth Amendment’s ban on “cruel and unusual punishment.” Developed over a half-century ago, the “evolving standards” approach requires the court to discern whether society has moved away from a challenged practice (such as executing those with intellectual disabilities) and rejects the idea that practices tolerated at the time of the framing of the Constitution are immune from Eighth Amendment challenge. Rather than adhering to “evolving standard of decency,” the state insisted that the Eighth Amendment should be construed in light of the “fixed and objective strictures of the Constitution’s original meaning.” 

In a similar vein, 14 state attorney generals filed an amicus brief in support of certiorari. That brief endorsed Alabama’s claim that the district court opinion misconstrued and extended Atkins by giving excessive weight to the lowest of Smith’s IQ scores. But the bulk of the brief urged the court to revisit and jettison “evolving standards of decency” as the operative test under the Eighth Amendment, claiming that such a focus is contrary to text, history, and logic.

The case languished for over a year, with the court repeatedly re-listing the petition. Such extended consideration of the petition suggested that perhaps the court was working in the weeds to determine whether the district court had in fact misgauged the evidence of Smith’s intellectual functioning. Or perhaps a small cohort of justices was writing a dissent from denial of certiorari to signal interest in revisiting the “evolving standards of decency” framework. Finally, in Nov. 2024, the court issued a per curiam opinion vacating the judgment of the court of appeals and seeking clarification of the basis for decision. According to the court, the panel opinion might be read as establishing a per se rule counting only the lowest IQ score – which the court strongly hinted was unacceptable; or it could be read as having considered all scores in a holistic matter together with other relevant evidence, which is likely more appropriate.

Ten days later, the 11th Circuit responded in a detailed opinion, insisting that it “unambiguously reject[ed] any suggestion that a court may ever conclude that a capital defendant suffers from significantly subaverage intellectual functioning based solely on the fact that the lower end of the standard-error range for his lowest of multiple IQ scores is 69” and that “we didn’t so conclude the last time we opined in this case.” The panel defended its conclusion that the district court had not clearly erred in finding that Smith has an intellectual disability.

But the dispute did not end there. Alabama again sought certiorari, renewing its claim of a split among the courts of appeals in gauging intellectual functioning. And once more, Alabama’s petition made no effort to conceal its contempt for the broader governing law in its four page “constitutional background” of the case, again taking aim at the “evolving standards of decency” framework. This time around, 19 states weighed in, exhorting the court to rethink the focus on “evolving standards.”

Surprisingly, given the panel’s unequivocal response to the court’s query, the court granted review a second time. Based on the panel’s clarification of its opinion, it seemed unlikely that the court would focus solely on the question of whether the district court clearly erred in its intellectual functioning assessment – especially after the solicitor general sought time at oral argument on behalf of the United States to argue that Atkins derives from a “moribund framework” and should be substantially limited. And, yet, the two hours plus of oral argument was entirely in the weeds, with the parties debating whether the underlying, fact-bound judgment of intellectual disability was sustainable. The phrase “evolving standard[s] of decency” was mentioned once, by Justice Samuel Alito, and only as part of his effort to understand how to decide the case “under our precedents.” Despite Alabama and the solicitor general’s attempts otherwise, the justices seemed united in accepting Atkins and its progeny as the appropriate reference points for decision.

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What, then, explains the court’s extravagant expenditure of resources in this case? Atkins represents a major inflection point in the court’s death penalty jurisprudence. Prior to Atkins, the court had been relatively deferential to states’ assessments of “evolving standards of decency,” focused primarily on the number of states that had come to reject a particular practice as well as prosecutorial and jury decision-making. Indeed, just 13 years before Atkins, this deferential approach led the court to reject categorical exclusions from the death penalty for persons with intellectual disability and juveniles.

In Atkins, however, the court reversed course and found the death penalty excessive for persons with intellectual disability even though a majority of death penalty states had not barred the practice. In addition to state statutes and sentencing practices, the court referenced expert views, religious opinion, world practices, and opinion polls. These indicia all weighed in favor of exempting those with intellectual disabilities from being executed. Atkins’ broader approach to assessing prevailing norms not only strengthened the case for the enhanced regulation of states’ capital punishment practices (including banning the execution of juveniles in 2005), but it also unlocked the possibility of invalidating the death penalty altogether,  as each of these criteria is increasingly inhospitable to the practice of capital punishment writ large.

The conservatives on the court objected to the holding in Atkins but were even more vehement in rejecting this seeming change in methodology.  Justice Antonin Scalia went so far as to bestow a “Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’” to the majority’s invocation of “the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls.”  The dissenting justices undoubtedly sensed that the new shape of the “evolving standards” methodology made thinkable a broadside constitutional attack on the death penalty itself. 

This proved accurate: As use of the death penalty declined in the years following Atkins, several justices called on the court to revisit the 1976 decision in Gregg v. Georgia sustaining the death penalty as consistent with prevailing “standards of decency.” In 2008, Justice John Paul Stevens, who had co-authored the key opinion in Gregg, urged the court to reconsider that decision as the court decided its first lethal injection case (perhaps prompted by the majority’s declaration that because “capital punishment is constitutional … [i]t necessarily follows that there must be a means of carrying it out”).  Seven years later, Justices Stephen Breyer and Ruth Bader Ginsburg, dissenting in another lethal injection case, offered an elaborate constitutional attack on the American death penalty (which Breyer subsequently published as a free-standing book). Scalia responded with his own attack on “evolving standards of decency” as the touchstone for the Eighth Amendment, claiming that the 1958 case of Trop v. Dulles, the source of that doctrine, “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other [case] that comes to mind.”

Yet, for now, at least, the forces seeking reconsideration of the “evolving standards of decency” doctrine (and by extension Atkins) seem better positioned than those seeking reconsideration of Gregg. Six years ago, in yet another lethal injection case, a majority of the court insisted that the death penalty is constitutional as a matter of history and text –implicitly challenging the “evolving standards” framework. The court also announced –somewhat gratuitously given that no one in the litigation was arguing the death penalty is unconstitutional –  that the death penalty is forever impervious to constitutional challenge (“the judiciary bears no license to end a debate reserved for the people and their representatives”).

This backdrop makes every grant of relief under Atkins, such as in Hamm, a fraught enterprise, because it is likely that a majority of the court has doubts about whether Atkins was rightly decided in the first instance. Indeed, the pressure on the broader “evolving standards” doctrine likely motivates members of the court to put every grant of Atkins relief under the microscope, with an eye to narrowing the protection of Atkins, rejecting Atkins, or rejecting the “evolving standards of decency” paradigm altogether. And the current solicitor general will be a frequent participant in this project, given President Donald Trump’s executive order, issued at the beginning of his current term, calling for the “Attorney General [to] take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment.”

Given that Atkins is on such precarious footing, states have strong incentives to seek review in the court, even in cases (like this one) that seem to turn on quintessentially uncertworthy disputes about underlying findings of fact. And regardless of how the current case is decided, we can expect at least some justices to write separately to call for reconsideration of the court’s broader Eighth Amendment framework in favor of a more originalist approach.