The U.S. Supreme Court heard arguments this week in a death penalty case in which the defendant’s school records from more than 40 years ago are playing a key role.
The central question in Hamm v. Smith is whether Joseph Clifton Smith, a 55-year-old Alabama man, has an intellectual disability that would make him ineligible for execution under a series of Supreme Court decisions beginning with the 2002 case of Atkins v. Virginia.
In that case, Justice John Paul Stevens wrote for the majority that executing individuals with intellectual disabilities would be a cruel and unusual punishment in violation of the Eighth Amendment.
“We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or retributive purpose of the death penalty,” Stevens wrote, using a term for intellectual disability that was then still in wide use.
The decision did give states with the death penalty (currently 27) leeway to define intellectual disability. Alabama defines “significantly subaverage intellectual functioning” as generally denoted by an IQ of 70 or below. Defendants in that state must also show “significant or substantial deficits” in adaptive behavior, which means a person’s sense of social responsibility and ability to perform daily activities independently, and that the individual exhibited such deficits before turning 18.
Other states have similar standards. One byproduct of the Atkins decision significant for the education community has been a marked increase in court proceedings delving into the school records and histories of defendants facing the death penalty, often featuring testimony from school psychologists, testing directors, and even former teachers. That trend underscores the need for schools to maintain and preserve student records for potential use years down the road.
One accomplished school psychologist and education professor testified in Smith’s 2017 hearing on his Atkins claim. Daniel Reschly, now an emeritus professor of education and psychology at Vanderbilt University, said he had served as an expert witness on intellectual disability and IQ tests in more than 40 criminal cases, many of them involving a potential death penalty.
“I’m not brought in on a case unless the attorneys believe there is a chance that there’s evidence that suggests the person might meet the criteria for intellectual disability,” Reschly said.
Debate over defendant’s five IQ tests
Smith was on work release for a burglary conviction in 1997 when he and an accomplice lured Durk Van Dam, a man they believed to be carrying a large amount of cash, to a remote wooded area, where they killed him with a hammer and saw. The pair made off with about $140 and some tools before they were caught. Smith confessed to his role in the crime.
An Alabama state jury convicted Smith of capital murder. A clinical psychologist evaluated Smith and presented evidence from his school years to the jury during the penalty phase. The psychologist, James Chudy, administered an IQ test, on which Smith scored a 72. Taking into account the standard error of measurement, Chudy said Smith’s IQ could be as low as 69 or as high as 75. This range would place him as low as the 3rd percentile of the general population. Scores of 90 to 109 are considered average, and scores of 120 and above are considered superior or very superior.
The jury recommended the death sentence, which the judge imposed, and Smith’s state appeals were denied. After the Supreme Court’s 2002 Atkins decision, Smith filed a writ of habeas corpus in federal court, the procedure used to challenge unlawful detention.
Reschly, the Vanderbilt professor, testified in that proceeding about his review of Smith’s school records, which indicated that the defendant had struggled academically and emotionally before dropping out of 7th grade. Smith had two IQ tests during his school years in the late 1970s and early 1980s, yielding scores of 75 and 74. Reschly concluded that with standard errors of measurement and other statistical adjustments, Smith could be classified as having an intellectual disability before he turned 18.
“I think the school records [of Smith] show the kinds of behaviors that are associated with and denote mild intellectual disability, or what was then called educable mental retardation,” Reschly testified in 2017.
Reschly noted that schools are often hesitant to label a younger child as having an intellectual disability.
“Many children before age 9 are called ‘developmental delay’ because that’s way more acceptable to parents,” Reschly said. “And from a school perspective, the actual disability for the child at an early age may be ambiguous or harder to determine.”
Reschly also stressed during his testimony that IQ tests remain imperfect measurements, even as they remain in wide use for special education evaluations in schools.
“No test score is etched in concrete,” he said. “The score is best understood as an estimate of the individual’s abilities derived under standardized conditions.”
Meanwhile, the state of Alabama’s expert, forensic psychologist Glen King, administered Smith an IQ test that yielded a score of 74. That was the fifth such test Smith had taken overall, resulting in scores ranging from 72 to 78, just over Alabama’s threshold score of 70 for determining an intellectual disability.
King testified that having five IQ scores obtained “over a lengthy period of time by different examiners under different conditions” was compelling evidence that Smith’s “true IQ” was above that of someone with an intellectual disability.
A federal district judge sided with Smith and his experts, holding the standard error measurement meant the defendant’s lowest test score “could mean his IQ is actually as low as 69.” That meant additional evidence had to be considered, the judge said, including the results of tests assessing Smith’s verbal abstract reasoning skills, vocabulary, and emotional perception. The judge also credited evidence that Smith struggled with employment and finances, had difficulty coping with emotional problems, and had significant deficits in his academic functioning.
The judge vacated Smith’s death sentence, which meant he would instead serve life in prison.
In a decision last year, the U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld the judge’s determination. Scores “within the range of about 65 to 75”—which applied to four of the defendant’s five IQ scores—“individually suggest Smith’s true IQ may be 70 or lower,” the court said.
‘Grade school’ records and dueling experts
Alabama appealed to the Supreme Court, which agreed to decide how lower courts should weigh the cumulative effect of multiple IQ tests in a death penalty case.
“The jury here had the very best evidence of [Smith’s] intelligence, his [lowest IQ score of] 72, the best evidence in his favor,” Robert M. Overing, the principal deputy solicitor general of Alabama, told the justices on Dec. 10. “And what’s happened decades since then has only confirmed what the jury knew then, that he is not intellectually disabled.”
Overing cited a report by another of Smith’s experts, a clinical psychologist who found Smith was reading at an 11th grade level on a comprehension test the expert had administered to him in prison.
That “is clearly inconsistent with intellectual disability, but the [lower] courts focus on the evidence from grade school,” Overing said.
Seth P. Waxman, Smith’s lawyer, told the justices that the lower federal courts in his client’s case correctly applied Alabama law, which allows judges to consider “evidence of intellectual functioning other than IQ test scores at least where a court, considering expert testimony, concludes that those scores alone don’t decide the issue.”
The lower federal courts properly considered Smith’s “grade school records, which showed that on every measure he was two to four years below grade average, culminating in a diagnosis of mental retardation in the 7th grade,” Waxman said.
Since the court’s 2002 decision in Atkins, it has ruled for defendants facing the death penalty in two follow-up decisions dealing with IQ tests and intellectual disability, in 2014 and 2017. Only Justice Clarence Thomas remains from the 2002 case, and two members from the five-justice majorities in the more recent cases—justices Anthony M. Kennedy and Ruth Bader Ginsburg—are gone.
The court’s three more liberal members—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—appeared supportive of Smith.
The court has “allowed for evidence related to adaptive functioning to be taken into account when looking at intellectual functioning,” Jackson said to the state’s lawyer. “So 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 case law.”
Justice Samuel A. Alito Jr., a conservative who dissented in the 2014 and 2017 decisions that ruled in favor of death penalty defendants, appeared sympathetic to Alabama’s position.
He asked whether there should be a “safe harbor” where “a person sentenced to death who’s claiming intellectual disability has to meet some concrete standard before the case can go on … as opposed to a situation where everything is up for grabs in every case, and both sides can bring in experts to testify about the person’s intellectual disability or lack of intellectual disability.”
Some of the other conservative justices were harder to read, especially two who have joined the court since the 2014 and 2017 decisions. Justice Amy Coney Barrett asked few questions, and Justice Brett M. Kavanaugh said, “We’re going to have to dig through a lot in this case.”
One thing likely won’t change regardless of how the court decides Smith’s case. The school records of defendants claiming intellectual disability to avoid the death penalty will remain relevant in such cases.
2025-12-11 17:50:37
Source link