Alabama Begs Supreme Court to Make It Easier to Execute People With Intellectual Disabilities

Alabama Deputy Solicitor general Robert Overing approached the podium at the U S Supreme Court on a mission to convince the justices that -year-old Joseph Clifton Smith should be put to death Never mind the two-day evidentiary hearing years earlier which convinced a federal district judge that Smith had an intellectual disability and that executing him would amount to cruel and rare punishment Never mind the three-judge panel of the th U S Circuit Court of Appeals that agreed And never mind the decades of Supreme Court precedent contradicting Alabama s position In current times s Supreme Court was no longer bound by its own development law Nothing in the Eighth Amendment bars the sentence Joseph Smith received for murdering Durk Van Dam nearly years ago Overing began Although the landmark decision in Atkins v Virginia banned the execution of people with intellectual disabilities Smith did not qualify He didn t come close to proving an IQ of or below An IQ count of has traditionally been considered a threshold for intellectual disability Smith s scores hovered above that ranging from to But under well-established clinical standards this makes him a borderline episode Experts and the Supreme Court itself have long recognized that IQ tests have an inherent margin of error And they have relied on an array of additional evidence to assess whether a person is intellectually disabled As now-retired Justice Anthony Kennedy wrote over a decade ago in Hall v Florida which explicitly struck down a rigid IQ requirement of intellectual disability is a condition not a number Under Atkins and under Alabama law decision-makers are bound by a three-part test whether a person has limited intellectual functioning determined in part by IQ whether they struggle with adaptive functioning the social and practical skills that make up day-to-day life and whether those struggles manifested before the age of The federal judges who ruled in Smith s favor had applied this very test But Overing discounted this He had an alternative narrative The judges had gone rogue To help Smith escape execution he argued the judges plucked his lowest tally and rounded down in his favor then leaned on lesser evidence as proof of his intellectual limitations The sentence Smith s IQ is below doesn t appear in the District Court s opinion nor in the Court of Appeals opinion he commented The courts changed the standard What you ve done is shift this to be all about the IQ test in a way that is not supported by our circumstance law It seems to me that you are in fact changing the standard Justice Ketanji Brown Jackson cut in The court opinions didn t include IQ is below because that isn t the law The first prong of the three-part test requires a showing of essential subaverage general intellectual functioning she announced 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 caselaw I m having a really hard time with this episode Justice Sonia Sotomayor announced Overing was accusing the lower courts of violating a standard that does not really exist The record proved that the federal judges adhered to Supreme Court precedent Hall invalidated the strict IQ requirement And a subsequent circumstance Moore v Texas emphasized that states could not rely on outdated clinical standards to reject intellectual disability contends The lower federal courts followed the law It s exactly what we advised people to do in Hall it s exactly what we advised people to do in Moore Sotomayor noted She then cut to the heart of the matter What you re asking us to do is to undo those cases On paper the question in Hamm v Smith is narrow Whether and how courts may consider the cumulative effect of multiple IQ scores in deciding whether a condemned prisoner has an intellectual disability This question has never been explicitly answered by the Supreme Court But while Alabama insisted that judges nationwide are yearning for guidance its appeal to the court was rooted less in questions of law than in political opportunism In the Trump era the court has become a friendly forum for right-wing ideologues with conservatives eagerly asking its supermajority to dismantle any pesky legal precedents obstructing their agenda Before Wednesday s oral argument it seemed likely the justices would find a way to give the state of Alabama what it wants The only question was how far they might go Specific conservatives hoped they might take aim at the Eighth Amendment itself specifically the long-standing principle that criminal punishments must be guided by the evolving standards of decency that mark the progress of a maturing society One amicus brief submitted on behalf of Republican attorneys general insisted that this framework must be dismantled The Court should never have reported judges to chase after the country s evolving standards of decency they wrote It is no secret that Justices Clarence Thomas and Samuel Alito agree with this sentiment But the scene at the court suggested that Hamm may not be the matter where they tear it all down The two-hour oral argument was mired in confusion over what exactly Alabama was talking about I m confused Justice Amy Coney Barrett informed Overing at one point echoing Sotomayor It doesn t seem like Alabama prohibits what the district court did in Smith s incident When it came to the supposed question at hand how to reconcile multiple IQ scores Overing s proposed solutions were not exactly subtle One option he explained was to completely adopt the highest IQ number because there are numerous tactics that an IQ test can underestimate IQ if the offender is distracted fatigued ill or because of the incentive to avoid the death penalty You can see why that might be regarded as a little results-oriented Chief Justice John Roberts replied With a ruling not expected until next summer Smith s life hangs in the balance After decades facing execution his journey to Washington shows how circumstance law that evolved to reflect scientific understandings is now under siege at the court It is also emblematic of the way in which conservatives are exploiting the high court s growing disregard for its own precedents and for federal courts trying to follow the law Joseph Clifton Smith had just gotten out of prison in November when he met a man named Larry Reid at a highway motel outside Mobile The pair encountered a third man Michigan carpenter Durk Van Dam and decided to rob him They lured him to a secluded spot and fatally beat him with his carpentry tools certain of which Smith later tried to sell at a pawn shop Smith was fleetly arrested and gave two tape-recorded statements to police At first he denied participating in the attack But in a second interview Smith implicated himself in the murder His trial was swift and stacked against him The presiding judge was Chris Galanos a former Mobile County prosecutor who had prosecuted Smith for burglary just a limited years earlier Smith s defense lawyers called no spectators during the guilt phase and largely conceded the version of events presented by the state This was due at least in part to the paltry pay and meager investigative guidance provided to court-appointed lawyers The jury convicted Smith in less than an hour At the time of Smith s trial there was no prohibition on executing people with intellectual disabilities The Supreme Court had refused to impose such a ban in its ruling in Penry v Lynaugh But it ruled that a diagnosed intellectual disability could be used as mitigating evidence to persuade a jury to spare a defendant s life Smith s lawyers called Dr James Chudy to testify at the sentencing phase The psychologist traced Smith s struggles to the first grade when Smith was described as a slow learner In seventh grade he was labeled educable mentally retarded Soon thereafter Smith dropped out of school Chudy gave Smith an IQ test which yielded a aftermath of According to Chudy this placed Smith in the bottom percent of the population intellectually But he also explained that he had to consider a standard error of measurement of about three or four points Thus Smith s true IQ could be as high as maybe a Chudy testified On the other hand he could be as low as a Smith s disability was exacerbated by his harrowing family life which was marked by severe poverty and abuse The conditions denied him the extra care he needed As his trial lawyers later argued in a plea for mercy He came into the world with a very very limited IQ He had no family patronage in that respect and that s how he came to be where he is But prosecutors urged jurors to apply common sense There are folks out there with marginal IQs who are street wise one prosecutor stated This man s been in prison this man s been around If jurors did not sentence Smith to die he argued they were saying the victim did not matter There was no value in his life and there was no meaning in his death Jurors recommended a death sentence by a vote of to Smith had been on death row for three years when the U S Supreme Court stated that it would reconsider its decision in Penry In the intervening years numerous states had passed bans on executing people with intellectual disabilities As the oral argument in Atkins approached the Birmingham News ran a special analysis declaring that Alabama led the nation in the shameful practice Defendants with intellectual disabilities were not only less culpable for their actions they could be easily misled and eager to win investigators approval The following year the Supreme Court handed down Atkins officially prohibiting the execution of people with intellectual disabilities Reacting to the decision Alabama Attorney General Bill Pryor stated he would follow the law But we will also be vigilant against those who would deceive the courts by claiming they are intellectually disabled when they re not Joseph Clifton Smith as a child Photos Courtesy of the Federal Defenders for the Middle District of Alabama The protections of Atkins have never been guaranteed The court left it to the states to decide how to enforce its ruling prompting efforts to circumvent the decision altogether While to date Atkins has led certain people to be removed from death row according to the Death Penalty Information Center others have been put to death despite evidence that their executions were unconstitutional In alone three men have been executed despite diagnoses of intellectual disability One Byron Black was executed in Tennessee even after the current district attorney acknowledged that killing him would violate the law Related Tennessee Is About to Execute Byron Black Despite His Intellectual Disability Since Atkins Alabama has executed at least four people despite evidence of intellectual disability All of them were represented by court-appointed attorneys who were denied the tools to properly defend their clients and whose decisions sometimes made matters worse In the matter of Michael Brandon Samra who was executed in trial lawyers did not hire an expert to evaluate him Instead they stated jurors the murder was rooted in his membership in a Satan-worshipping gang Smith spent years trying to challenge his death sentence under Atkins After losing in state court he was appointed lawyers with the Federal Defenders for the Middle District of Alabama who filed a challenge in federal court arguing that Smith suffers from crucial intellectual and adaptive limitations only chosen of which were presented at trial But they were up against onerous procedural hindrances Alabama s Criminal Court of Appeals had rejected the evidence of Smith s intellectual disability and a federal judge could only reverse the decision if it clearly violated the law In U S District Court Judge Callie Granade ruled against Smith But that same year the Supreme Court agreed to hear Hall v Florida which would strengthen the ruling in Atkins The matter centered on a man whose IQ scores ranged from to Because Florida law required a strict cutoff of his appeals were rejected Famed Supreme Court litigator Seth Waxman delivered the oral argument in Hall He began by reiterating the three-part definition of intellectual disability used by experts and established in Atkins a significantly subaverage intellectual function concurrent with deficits in adaptive behavior with an onset before the age of Because of the standard error of measurement inherent in IQ tests he declared it is universally accepted that persons with obtained scores of to can and often do have an intellectual disability The argument grappled with the challenge of multiple IQ scores There were no easy answers When Florida s solicitor general argued that the best measure of your true IQ is your obtained IQ test outcome Justice Elena Kagan pushed back The ultimate determination here is whether somebody is intellectually disabled she noted IQ tests were not even a full piece of the three-part puzzle What your cutoff does is it essentially says the inquiry has to stop there In the court struck down Florida s law by a vote of to The next year the th Circuit reversed the District Court s decision in Smith s incident The judges detected that Alabama s Court of Criminal Appeals had improperly relied on Smith s unadjusted IQ scores to conclude that there was no evidence of intellectual disability The court sent the development back to Granade for an evidentiary hearing Related Texas Can No Longer Fabricate Its Own Anatomical Standards to Justify Executions Two months before the hearing the U S Supreme Court handed down yet another decision bolstering Smith s occurrence The ruling in Moore v Texas struck down Texas s peculiar method for determining intellectual disability which was rooted more in stereotypes than science In line with Hall it read we require that courts consider other evidence of intellectual disability where an individual s IQ tally adjusted for the test s standard error falls within the clinically established range for intellectual-functioning deficits In May Granade presided over an evidentiary hearing in Montgomery Over two days of testimony experts shed light on modern understandings of intellectual disability and how it was reflected in Smith s life Because he d spent much of his adult life incarcerated it was hard to evaluate his ability to live independently But he d struggled in the outside world living in hotels following others and behaving recklessly and impulsively The hearing also highlighted the very stereotypes that often prevent lay people from recognizing intellectual disabilities A state lawyer urged one of Smith s experts if he was aware that Smith had been paid to mow lawns at and later worked as a roofer and painter None of these jobs were inconsistent with a mild intellectual disability the expert replied Was he aware that Smith claimed he constantly had money in his pocket and he dependably worked full time the lawyer required The expert replied that while this may have been true people with intellectual disabilities often try to downplay their struggles particular exaggerate their competencies and what they can do Granade ultimately vacated his death sentence This is a close circumstance she wrote At best Smith s intelligence falls at the low end of the borderline range of intelligence and at worst at the high end of the required significantly subaverage intellectual functioning Given the ambiguity as to the first of Atkins s three-prong test she turned to the second and third prongs Whether Smith is intellectually disabled will fall largely on whether Smith suffers from crucial or substantial deficits in adaptive behavior as well as whether his problems occurred during Smith s developmental years she wrote The evidence proved that the answer to both questions were yes After years on death row Smith was no longer facing execution It would not take long for Alabama to fight back In February the episode landed back at the th Circuit for an oral argument Speaking before a three-judge panel a lawyer for the state attorney general s office disregarded Granade s careful consideration of the evidence accusing her of totally cherry-picking the lowest least reliable total in order to vacate Smith s death sentence The judges were skeptical The state s briefs ignored the Supreme Court s rulings in Hall and Moore It seems to me like they are the controlling precedent here one judge disclosed Yet the only time the state acknowledged the rulings was to cite the dissents Another judge had been on the panel that sent the affair back to the district court in What we concluded in that opinion was that other pieces of evidence should be considered together with the IQ scores to determine whether or not Smith is intellectually disabled he stated Granade did precisely this In fact he pointed out not doing so would have violated the law The th Circuit ruled in Smith s favor By then the U S Supreme Court was a vastly different court from the one that decided Hall and Moore The power was now firmly entrenched in a conservative supermajority that was dramatically reshaping and in a multitude of cases eviscerating the rule of law In a petition to the justices Alabama accused the lower federal courts of placing a thumb on the scale in favor of capital offenders Lawyers for Smith countered that the state was distorting the facts and the law Alabama continued to insist that the lower courts had manipulated a single IQ result to reach its conclusions In reality Smith s attorneys argued their opinions were rooted in expert testimony Supreme Court precedent and a thorough review of the evidence Nevertheless in the Supreme Court vacated the th Circuit s ruling Before agreeing to hear the development however it sent the episode back for an explanation The th Circuit s decision could be read in two strategies the justices disclosed Either it gave conclusive weight to Smith s lowest IQ number or it took a more holistic approach to multiple IQ scores that considers the relevant evidence The th Circuit replied that it had done the latter firmly rejecting Alabama s claim that it relied on a single total But the narrative had already opened the door for Alabama teeing up the affair for argument The Supreme Court put Hamm v Smith on its docket By the time Overing stepped down from the podium on Wednesday Sotomayor was fed up Show me one development in Alabama that has followed your rule she demanded to no avail She pointed out that the state expert who testified at Smith s evidentiary hearing had himself relied on information beyond his IQ scores Your own expert did exactly what you say is wrong She also pushed back on the claim that states were confused about how to handle Atkins indicates Although you try to reap several confusion she revealed they all seem to be following the method the district court here followed A rigid new rule was bound to create new complications Even the lawyer representing the Trump administration who argued in advocacy of Alabama didn t quite align with Overing s argument A judge was free to consider evidence apart from IQ he conceded But you still need to circle back and decide whether the other evidence is strong enough to drag down the collective weight of IQ The issue remained how exactly to calculate this The conservatives seemed open to trying Justice Brett Kavanaugh went through Alabama s proposals from identifying the median total to an overlap approach considering each result s error range to merely calculating the average They all seemed to favor the state But as Jackson pointed out none of these methods have been adopted by Alabama She still did not see how the justices could reverse the District Court I m trying trying to understand how and to what extent the District Court erred in this affair given the law as it existed at the time as opposed to the law Alabama wishes it had enacted Alito too seemed frustrated albeit for different reasons Shouldn t there be several concrete standard for a person claiming to be intellectually disabled as opposed to a situation where everything is up for grabs But the same question had been raised in Hall more than a decade earlier only for the court to conclude that the matter was too complex for hard rules At the end of the day the science still mattered And where the death penalty is concerned courts still have a unique obligation to consider people s cases individually The third and last lawyer to speak was Seth Waxman the same litigator who successfully argued Hall Forced to relitigate issues that had been decided years earlier he determined various common ground with his adversaries Replying to a dubious theoretical from Alito What if the IQ scores were five s and one Waxman declared a judge could seemingly safely decide that such a person was not intellectually disabled without too much attention to additional factors But by the end they were going in circles So in just about every situation then IQs and testimony about IQs can never be sufficient Alito sought I don t know how to Waxman began before interrupting himself I have given you every achievable answer that I have The post Alabama Begs Supreme Court to Make It Easier to Execute People With Intellectual Disabilities appeared first on The Intercept