{"database": "openregs", "table": "crs_reports", "rows": [["LSB11426", "The Cruel and Unusual Punishments Clause\u2019s Ban on Executing the Intellectually Disabled", "2026-05-01T04:00:00Z", "2026-05-02T05:54:01Z", "Active", "Posts", "Dave S. Sidhu", null, "In 2002, the Supreme Court in Atkins v. Virginia ruled that the imposition of capital punishment on the intellectually disabled constitutes \u201ccruel and unusual\u201d punishment in violation of the Eighth Amendment, leaving to the states the responsibility to determine who qualifies as intellectually disabled. (The Eighth Amendment binds both the federal as well as state and local governments by virtue of the Fourteenth Amendment.) In and after Atkins, the Court has provided some guideposts to the states in performing this constitutional inquiry. The Court has not, however, resolved whether and how states may consider a defendant\u2019s scores from multiple Intellectual Quotient (IQ) tests. This term, in Hamm v. Smith, the Court may resolve the open question. \nThis Sidebar discusses the Supreme Court\u2019s jurisprudence on the Eighth Amendment and the imposition of capital punishment on the intellectually disabled. It sketches the Supreme Court\u2019s specific decisions applying the Eighth Amendment\u2019s Cruel and Unusual Punishments Clause to the subject of executing the intellectually disabled. Against this backdrop, this Sidebar provides an overview of the Hamm case that remains pending before the Supreme Court. Finally, this Sidebar closes with considerations for Congress. \nThe Categorical Ban on Imposing Capital Punishment on Individuals with Intellectual Disabilities\nAtkins v. Virginia\nIn 2002, the Supreme Court determined in Atkins v. Virginia that subjecting prisoners with intellectual disabilities to capital punishment had become \u201ctruly unusual,\u201d and that it was \u201cfair to say\u201d that a \u201cnational consensus\u201d had developed against this policy. To wit, in 1989, only two states that otherwise permitted capital punishment and the federal government prohibited the execution of persons with intellectual disabilities. By contrast, in 2002, the Court observed, an additional sixteen states that otherwise allowed capital punishment had prohibited execution of persons with intellectual disabilities, and no states had reinstated the power. What mattered, the Court clarified, was \u201cnot so much the number\u201d of states that had changed course, but instead the \u201cconsistency of the direction of change.\u201d \nThe Court checked the execution of individuals with disabilities against the purposes of punishment. Neither of the two generally recognized penological justifications for the death penalty\u2014retribution and deterrence\u2014applies with full force to individuals with intellectual disabilities, the Court concluded. It found that retribution corresponds with, and reflects, the culpability of the defendant; however, impaired intellectual capacity reduced the defendant\u2019s culpability and moral blameworthiness. The Court also pointed out that deterrence theory of punishment is premised on the ability of individuals to conform their conduct to bounds of the law, and diminished intellectual capacity reduces an individual\u2019s ability to engage in self-control. As to murder in particular, the Court asserted that this crime involves premeditation and deliberation, but the Court suggested that the intellectually disabled are not as capable of engaging in \u201cthat sort of calculus.\u201d\nThe Atkins Court left to the states the \u201ctask of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.\u201d In the course of its opinion, the Court referred to definitions of \u201cintellectual disability\u201d from the medical community that centered on three criteria: (1) \u201csignificantly subaverage general intellectual functioning\u201d; (2) \u201csignificant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety\u201d; and (3) \u201c[t]he onset must occur before age 18 years.\u201d These criteria became relevant in subsequent cases in which the Court provided some guideposts on how states are to evaluate the criteria and continue to be relevant in Hamm, in which the Court is being asked to supplement these guideposts. \nPost-Atkins Supreme Court Cases\nSchriro v. Smith (2005)\nAfter Atkins, the U.S. Court of Appeals for the Ninth Circuit considered a pending federal habeas action in which a petitioner in Arizona argued he was intellectually disabled and therefore could not be executed. The Ninth Circuit suspended the proceedings, ordering the \u201cArizona courts to conduct a jury trial to resolve [the petitioner\u2019s] . . . claim.\u201d On appeal, the Supreme Court stressed that states\u2014not federal courts\u2014are to \u201cadopt[] their own measures for adjudicating [such] claims.\u201d The Court reversed the Ninth Circuit\u2019s decision, reasoning that \u201cArizona had not even had a chance to apply its chosen procedures when the Ninth Circuit pre-emptively imposed its jury trial condition.\u201d\nPanetti v. Quarterman (2007)\nThe Court in Panetti v. Quarterman clarified when a prisoner\u2019s current mental state can bar their execution under Ford v. Wainwright\u2014in which the Court in 1986 had held that the Eighth Amendment prohibits the government from carrying out the death penalty on an individual who has a severe mental illness. Relying on the understanding that the execution of a prisoner who cannot comprehend the reasons for his punishment serves \u201cno retributive purpose,\u201d in Panetti, the Court concluded that the operative test was whether a prisoner can \u201creach a rational understanding of the reason for [his] execution.\u201d The Court announced a standard that if a prisoner\u2019s mental state is so distorted by mental illness that he cannot grasp the execution\u2019s \u201cmeaning and purpose\u201d or the \u201clink between [his] crime and its punishment,\u201d he cannot be executed. The Court also described the procedural requirements in such a case. Once a death row inmate has made a \u201cpreliminary showing that his current mental state would bar his execution,\u201d due process entitles him to a hearing at which he may present \u201cevidence and argument from the prisoner\u2019s counsel, including expert psychiatric evidence\u201d in support of his claim of incompetence and in rebuttal of any state-offered evidence.\nHall v. Florida (2014)\nThe Court in Hall v. Florida reviewed a Florida law establishing a mandatory bright-line cutoff under which an individual was not intellectually disabled if the individual possessed an IQ of above 70. The Florida Supreme Court had upheld the \u201c70-point threshold\u201d as constitutional.\nThe Supreme Court invalidated the law\u2019s \u201crigid rule,\u201d observing that \u201c[i]ntellectual disability is a condition, not a number.\u201d The majority found that, although IQ scores are helpful in determining mental capabilities, they are imprecise in nature. The Court referenced a corresponding consensus of mental health professionals that concluded that an IQ test score should be read not as a single fixed number, but as a range that accounts for a \u201cstandard error of measurement\u201d or \u201cSEM.\u201d The Court explained that an SEM \u201cmeans that an individual\u2019s score is best understood as a range of scores on either side of the recorded score,\u201d \u201cwithin which one may say an individual\u2019s true IQ score lies.\u201d Accordingly, the Court determined that a state\u2019s assessment of an IQ score must include consideration of the corresponding SEM. In addition, the Court added that \u201conce the SEM applies and the individual\u2019s IQ score is 75 or below the [intellectual disability] inquiry\u201d should not bar \u201cfactors indicating whether the person had deficits in adaptive functioning.\u201d\nMoore v. Texas (2014 and 2019)\nIn two opinions stemming from the same underlying case, the Court reviewed and rejected intellectual disability standards adopted in Texas. In 1980, a Texas state court convicted a defendant for a murder committed during an attempted robbery and sentenced him to death. Following Atkins, in 2014, a Texas state habeas court found the defendant to be intellectually disabled and recommended that he be declared ineligible for the death penalty. The Texas Court of Criminal Appeals (CCA), however, denied relief. On appeal, in Moore v. Texas (Moore I), the Supreme Court rejected the standards used by this Texas court to evaluate whether a death row inmate was intellectually disabled, which created an \u201cunacceptable risk that persons with intellectual disability will be executed.\u201d The defendant\u2019s six credited IQ scores yielded an average of 70.66. The Court wrote that Hall instructs that an IQ score be adjusted for the SEM and that \u201c[b]ecause the lower end of [the defendant\u2019s] score range falls at or below 70, the CCA had to move on to consider [the defendant\u2019s] adaptive functioning.\u201d\nHere, the Texas court erred in these two respects, the Court concluded. First, the Court majority concluded that the Texas court improperly narrowed the SEM when assessing the defendant\u2019s IQ scores. Second, it found that the Texas court failed to properly analyze the defendant\u2019s adaptive functioning. For example, the Court noted that the Texas decision emphasized the petitioner\u2019s perceived adaptive strengths and his behavior in prison and discounted several traumatic experiences from the defendant\u2019s past. The Supreme Court vacated and remanded the case. On remand, the Texas CCA again concluded that the defendant was not intellectually disabled for capital punishment purposes. \nThe case returned to the Supreme Court. In a 2019 per curiam opinion, the Court again held that the standard used by Texas fell short of the requirements set forth in Hall. The Court criticized the Texas court for its reliance on the petitioner\u2019s adaptive strengths in lieu of his adaptive deficits; its focus on the petitioner\u2019s adaptive improvements made in prison; its tendency to consider the petitioner\u2019s social behavior to be caused by emotional problems, instead of his general mental abilities; and its continued reliance on a lay opinion. In consideration of Moore I, the Court concluded the petitioner was a person with intellectual disability, reversing the lower court\u2019s judgment and remanding the case.\nMadison v. Alabama (2019)\nIn 2019, in Madison v. Alabama the Court explained that a prisoner challenging his execution on the ground of a mental disability cannot prevail merely because he cannot remember committing his crime. The Court found that the relevant temporal moment is not the prisoner\u2019s memory vis-\u00e0-vis the commission of the offense, but rather the prisoner\u2019s appreciation for the nature of the pending execution. The Court made clear that, under its decision in Panetti, a prisoner\u2019s claim hinges on whether he has a rational understanding of the reason for his execution. A person\u2019s memory loss or dementia, the Court added, could relate to the latter inquiry: \u201cpersons suffering from dementia could satisfy the Panetti standard.\u201d The Court returned the case to state court to reevaluate the prisoner. In doing so, the court stated that general loss of memory, alone, does not bar execution.\nHamm v. Smith\nBackground\nJoseph Clifton Smith was tried and convicted of first-degree murder, a capital offense in Alabama. Following the guilt phase of his trial, Smith was sentenced to death. Smith raised an Atkins claim\u2014that he was intellectually disabled and therefore ineligible for capital punishment\u2014that the Alabama state courts rejected. Smith turned to federal court, seeking habeas relief on the ground that his sentence violated Atkins. The federal district court held an evidentiary hearing on his Atkins claim. At the hearing, Smith presented five IQ scores relevant to whether he suffered from \u201csignificantly subaverage general intellectual functioning\u201d\u201475, 74, 72, 78, and 74. The court heard expert testimony, presented by Smith and by Alabama, on these scores as they relate to Smith\u2019s intellectual functioning. The court then moved on to weigh Smith\u2019s adaptive functioning, and heard information from experts on Smith\u2019s communication skills, literacy, vocabulary, and ability to adhere to rules, among other things. Finally, the court probed whether these two prongs\u2014concerning intellectual functioning and adaptive functioning\u2014were present during Smith\u2019s developmental period. \nBased on this information, the district court concluded that Smith was intellectually disabled. As relevant here, the district court observed that Smith had IQ \u201cscores as low as 72, which according to testimony could mean his IQ is actually as low as 69 if you take into account the standard error of measurement.\u201d The district court did not credit the testimony of Alabama\u2019s expert as \u201cstrong enough\u201d to throw out the lowest score \u201cas an outlier\u201d or to disregard the standard error of measurement. In view of all the evidence, the district court found that Smith satisfied each of the prongs to show he was intellectually disabled.\nThe U.S. Court of Appeals for the Eleventh Circuit affirmed, holding that the district court complied with Supreme Court precedent in deciding that \u201cwhen an offender\u2019s lowest IQ score, adjusted for the test\u2019s standard error of measurement, is equal to or less than 70, a court must move on and consider evidence of the offender\u2019s adaptive deficits.\u201d Alabama asked the Supreme Court to review the decision. The Supreme Court denied the petition for review, vacated the Eleventh Circuit opinion, and instructed the Eleventh Circuit to clarify on remand whether its affirmance was based: (1) solely on \u201cthe fact that the lower end of the standard-error range for Smith\u2019s lowest IQ score is 69\u201d or on (2) a \u201cholistic approach to multiple IQ scores that considers the relevant evidence, including as appropriate any relevant expert testimony.\u201d The circuit court responded that it had employed the latter basis, explaining it had acknowledged that \u201cadditional evidence\u201d\u2014beyond a single IQ score\u2014\u201cmay be required to determine whether Smith has significantly subaverage intellectual functioning.\u201d According to the Eleventh Circuit, the district court followed suit, investigating expert testimony on the IQ scores and Smith\u2019s intellectual functioning more generally. \nThe Commissioner of the Alabama Department of Corrections, John Hamm, filed a petition for review before the Supreme Court. The Justices granted certiorari to address \u201cWhether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.\u201d\nThe Parties\u2019 Arguments\nAlabama contends that reversal is appropriate because \u201cSmith never proved that his five scores together imply an IQ of 70.\u201d Alabama further argues that the lower courts \u201cfixated\u201d on Smith\u2019s lowest IQ score, treating it as dispositive. Alabama claimed that \u201cholistic\u2019 rhetoric was just window dressing\u201d and that, \u201cIf all that matters is whether Smith\u2019s IQ could\u2019 be 69, then the presence of multiple scores is legally meaningless.\u201d Alabama further argued that the lower courts looked at each score individually rather than collectively, as the latter \u201cprevents intellectual functioning from being reduced to a single numerical score.\u2019\u201d \nThe United States has participated in the case as amicus in support of Alabama. In its brief, the United States argues that Smith has not met his burden of proving that he is intellectually disabled and urges the Court to reject a \u201cone-low-score rule, where so long as a prisoner obtains one IQ test at the margins, he proves deficient intellectual functioning for purposes of Atkins.\u201d\nFor his part, Smith agreed with the parties that \u201cthe existence of multiple IQ scores does not mean that IQ score alone can become dispositive of intellectual functioning if the range of those scores, taking into account the SEM, reaches 70 or below.\u201d Smith also agreed that intellectual functioning should be determined in a \u201cholistic\u201d fashion. Smith, however, claimed that the district court did not focus on any score or scores overall, but considered other non-IQ evidence indicative of intellectual functioning.\nThe Supreme Court held oral argument in this case on December 10, 2025. The Court may issue a ruling in the case by the end of June or early July.\nConsiderations for Congress\nCongress has a long-standing and ongoing interest in legislation involving the death penalty. For example, the current Congress has proposed legislation that would introduce new federal capital offenses (see, e.g., H.R. 7702, 119th Cong.) and that would add aggravating factors that courts may consider in deciding whether a death sentence should be imposed (see, e.g., H.R. 4697, 119th Cong.). Because Hamm turns on an interpretation of the Eighth Amendment, Congress\u2019s options to address the scope and meaning of Atkins and its progeny may be more limited. If it chose to, it could restrict the use of capital punishment beyond what is required under the Eighth Amendment (as interpreted by courts), for example by providing enhanced limitations on the application of federal capital punishment for particular IQ scores. Congress may also leave resolution of these issues to the courts.  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