In his article https://tinyurl.com/vff6reek, “The Supreme Court and Intellectual Disability – Yet Again,” in Santa Barbara Lawyer Magazine,” criminal law specialist (and DPF board member) Robert Sanger maintains that a recent U.S. Supreme Court per curiam opinion in Hamm v. Smith “may be one of those sleeper decisions we need to watch.”
In Hamm v. Smith, the Eleventh Circuit Court of Appeals upheld a federal district court’s finding that Joseph Clifton Smith was ineligible for the death penalty because of his intellectual disability. The Eleventh Circuit reviewed “in detail,” according to Sanger, the testimony of conflicting experts on IQ scores, that nevertheless concluded Smith’s test scores would place him in “around the lowest two percent of the population.” The Eleventh Circuit also considered Smith’s adaptive functioning and found “signicicant deficits in social/interpersonal skills, self-direction, independent home living, and functional academics.” It then concluded that “the district court did not clearly err in finding that Smith is intellectually disabled…and his sentences violates the Eighth Amendment. . . . and affirm the district court judgment vacating Smith’s death sentence.”
“That should have been it,” Sanger writes, but the State of Alabama petitioned the U.S. Supreme Court for certiorari. And, despite the fact “there should have been no basis for the Court to grant certiorari and summarily reverse for further proceedings,” the Court did, and issued “a one page per curiam opinion that, respectfully, makes no sense in light of the record.” Justices Thomas and Gorsuch “dissented with regard to the remand and would have set the case for argument.”
Sanger is concerned that the decision could indicate the “Court may be setting up the long game to cut back on protections against executing the intellectually disabled,” protections put in place with the Court’s decision in Atkins v. Virginia (2002), which found that the execution of people with intellectual disabilities violates the Eighth Amendment’s ban on cruel and unusual punishment.
Still, “the Eleventh Circuit is standing their ground,” according to Sanger. The Circuit Court responded quickly to the Supreme Court’s order and was “quite blunt in reaffirming their decision and reasons for it,” Sanger says. The Eleventh Circuit noted, “Clinicians who attempt to diagnose whether an individual has significantly subaverage intellectual functioning do not limit themselves to IQ tests.” And added, “[I]ntellectual disability is a condition, not a number.”
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