Hamm v. Smith

    Issues

    When defendants claiming an intellectual disability under Atkins have multiple IQ scores, how, if at all, should courts consider the cumulative effect of the IQ scores? 

    Oral argument:
    December 10, 2025
    Court below:
    United States Court of Appeals for the Eleventh Circuit

    Respondent Joseph Smith is challenging a death sentence for murder by claiming an intellectual disability under an Alabama state law Atkins-like framework. The first prong of the test requires claimants to prove, by a preponderance of the evidence, that they have an intelligence quotient (“IQ”) score below 70. While Smith has had five IQ tests over 70, one of the tests includes 69 within its 95% confidence interval. Petitioner John Hamm argues that Smith’s higher IQ scores prevent Smith from meeting his burden of proof on this first prong, so Smith cannot use the intellectual disability defense to escape execution. Smith, on the other hand, argues that his scores are borderline and inconclusive, so the Eighth Amendment of the U.S. Constitution and Alabama state law both permit him to use additional evidence to prove his intellectual disability. This case raises questions of victims’ interests in efficient and complete justice, the right to not be subject to cruel and unusual punishment, and states’ rights to develop and enforce their own criminal code, including sentencing preferences.

    Questions as Framed for the Court by the Parties

    Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.

    Facts

    In Atkins v. Virginia, the Supreme Court of the United States held that the cruel and unusual punishment clause of the Eighth Amendment prohibits the execution of a criminal defendant with an intellectual disability.  The Supreme Court of Alabama adopted a three-prong test for Atkins claimants to prove an intellectual disability: they (1) have “significantly subaverage intellectual functioning,” (2) have “significant or substantial deficits in adaptive behavior,” and (3) have “manifested those qualities” before the age of 18.  To meet the first prong of the test, Atkins claimants in Alabama must prove their IQ is 70 or below by a preponderance of the evidence. Alabama courts consider multiple IQ scores holistically, considering all relevant evidence, rather than looking at one piece of evidence conclusively.

    In 1998, Joseph Smith was convicted of first-degree murder committed during a robbery. Smith received five IQ scores ranging from 72 to 78, and his IQ could be as low as 69 based on the margin of error for his lowest scoring IQ test.  In 2005, Smith filed for post-conviction relief, alleging that his execution would violate the Eighth Amendment due to his intellectual disability. The trial court dismissed Smith’s petition based on the trial evidence from before his Atkins claim, mainly that his five IQ tests were all above 70. The Alabama Court of Criminal Appeals affirmed, and the Alabama Supreme Court denied certiorari.

    Smith petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Alabama, claiming again that his execution would violate the Eighth Amendment due to his intellectual disability. The district court denied Smith’s petition and evidentiary hearing request because his range of IQ scores above 70 showed that his functioning was not significantly subaverage. The United States Court of Appeals for the Eleventh Circuit reversed and remanded for an evidentiary hearing because the state court’s determination that Smith lacked an intellectual disability without a hearing was unreasonable, given that Smith’s IQ could be as low as 69 and that Alabama lacks a strict IQ cut off. On remand, the district court concluded that Smith met the three elements for intellectual disability and granted his habeas petition. The district court vacated Smith’s death sentence, and the Eleventh Circuit affirmed.

    On August 17, 2023, John Hamm, the commissioner of the Alabama Department of Corrections, petitioned for certiorari, and the Supreme Court of the United States vacated and remanded to the Eleventh Circuit to clarify whether it “afford[ed] conclusive weight” to Smith’s IQ or considered all the evidence holistically. On remand, the Eleventh Circuit explained that it had used a holistic approach to affirm the district court’s determination of Smith’s intellectual disability. Hamm petitioned for certiorari again on February 12, 2025, and the Supreme Court granted certiorari, limited to the question of when and how to consider the cumulative effect of multiple IQ scores, on June 6, 2025. 

    Analysis

    THE EIGHTH AMENDMENT’S REQUIREMENTS

    Hamm asserts that Smith has not proven he has an intellectual disability because Smith took five different IQ tests, and the consistency of the five scores above 70 is more reliable than one test alone. While Hall v. Florida prohibits states from treating a single score as conclusive, Hamm counters that the state has accounted for error by evaluating all five of Smith’s IQ scores, rather than only one score.  Hamm emphasizes that the court must look to societal norms to justify whether a punishment is cruel and unusual, and the main way to do that is by looking at a consensus of state legislatures. Hamm argues that Smith cannot show that the states agree on a single approach to interpreting multiple IQ scores because most states decline to establish norms on how courts should interpret multiple IQ scores. Hamm explains that where states have established norms for multiple IQ scores, as many states focus on the highest IQ score as focus on the lowest IQ score, so there is no national consensus and thus, Smith receiving the death sentence does not violate societal norms.

    Hamm emphasizes that, regardless of whether a national consensus for interpreting multiple IQ scores exists, the Supreme Court can decline to expand the Eighth Amendment by looking to the “text, history, meaning, and purpose” of the Eighth Amendment. Hamm argues that the Eleventh Circuit’s decision lacks historical support for expanding the scope of the Eighth Amendment. To show there is not historical precedent to expand the Eighth Amendment, Hamm compares the Atkins rule to the common law prohibition on punishing defendants with an IQ below 25 and claims that there is no comparable historical practice to a rule denying the cumulative effect of multiple IQ scores. Hamm also argues that the Eighth Amendment’s history supports deference to the state law here, especially where the case relies on psychiatric determinations about the defendant.

    In response, Smith argues that Hall disallows courts from only assessing one factor, such as IQ scores, when determining the presence or absence of intellectual disability. Instead, Smith asserts that the Eighth Amendment requires courts to assess all relevant evidence holistically. Smith contends that in his case, where his IQ scores are both above and below the cut off range and are therefore inconclusive, he must be able to present additional evidence of his alleged intellectual disability. Smith echoes Hamm’s emphasis of societal norms and state consensus on the topic of Eighth Amendment adjudication, but Smith argues that there is an “overwhelming consensus in favor of holistic review.” Smith contends that Hamm wrongfully only looked to state legislative action, and that state-law judicial decisions are also relevant. Smith asserts that trial courts across the country have consistently looked at each IQ score in the context of additional evidence to determine whether the defendant has proven his claimed intellectual disability.

    Smith argues that his position does not require an expansion of Eighth Amendment protections. Instead, Smith asserts that his position is supported by decades of Supreme Court jurisprudence. Smith emphasizes Ford v. Wainwright, where the Court said that the Constitution requires a “high regard for the truth” when it comes to finding facts relevant to “the life or death of a human being.” Smith contends that Ford suggests that the Eighth Amendment already requires the consideration of all evidence, including clinician testimony and behavioral evidence, when the question of sanity is raised. Smith therefore asserts that the history and text of the Eighth Amendment support a holistic evaluation. Finally, Smith adds that IQ scores are only estimates of intellectual capacity, so they are insufficient for the complete fact finding demanded by the Eighth Amendment. 

    THE ELEVENTH CIRCUIT’S TREATMENT OF IQ SCORES

    Hamm argues that, by counting each score 75 and below as suggesting a possibility of disability, the Eleventh Circuit contravened the precedent set in Atkins, which left discretion to the states. Hamm asserts that the Eleventh Circuit’s approach therefore requires the state to affirmatively rule out the possibility of disability, shifting the burden away from the defendant to show disability. Hamm explains that even though Smith himself acknowledged that his IQ is “somewhat higher” than 70, the new framework allowed him to meet his burden because some of his scores suggested that his IQ could be lower than 70. Hamm explains that Atkins proffered only a substantive definition of intellectual disability but reserved the procedural standard of proof question to the states, so the Eleventh Circuit’s framework infringes on the question left to the states. Hamm emphasizes statistical factors that show that focusing on the lower end of the range of error is scientifically unsound, as a test-taker is more likely to underperform due to stress or fatigue than to overperform on an objective intelligence test.

    Hamm argues that the Eleventh Circuit incorrectly claims that a score of “about 65 to 75” could “individually suggest” an IQ below 70 because there is no universal range of error for IQ tests. Hamm claims that if Hall’s prohibition on treating a single score as conclusive applies to cumulative scores as well, then the entire set of scores cannot be treated as conclusive. Hamm explains that, even if it were relevant whether Smith’s entire set of scores yielded an error range reaching below 70, Smith failed to show how the Hall requirement to account for error could overcome the cumulative effect of his scores. Finally, Hamm points out that, where the defendant in Brumfield v. Cain had one IQ score of 75 and another score “a little bit higher,” the second score could have precluded the possibility of disability if the higher-scoring test was “sufficiently rigorous.” Hamm argues that, under Brumfield, Smith’s score of 78 trumps the lower scores because the test producing the high score is accepted in the field and has a 95% confidence interval above 70. Hamm argues that regardless of the Eleventh Circuit’s approach to the IQ scores 75 and below, the one score of 78 shows that Smith is not intellectually disabled.

    Smith argues that the Eleventh Circuit, in affirming the district court decision, did leave the decision of standard of proof to the states, and the district court correctly applied Alabama’s law. Smith asserts that Alabama Supreme Court opinions issued after Atkins clarify that trial courts should account for all relevant evidence when they assess an intellectual disability claim, which is, Smith argues, exactly how the district court approached this case. Further, Smith emphasizes that Alabama state precedent holds that “no one piece of evidence, such as [an] IQ test score, is conclusive as to intellectual disability.” Smith argues this is correctly interpreted to mean that a single IQtest scorecannot be used to prove nor disprove intellectual disability and that additional evidence is needed to make a determination. Additionally, Smith contends that the Eleventh Circuit correctly upheld the district court’s conclusion that Smith had proven by a preponderance of the evidence his intellectual disability under the Atkins test. Smith argues that where the district court overruled the state court, it was only to allow Smith to present his evidence, not to alter the analysis of the evidence as prescribed by Alabama law and judicial precedent. 

    Smith further disputes Hamm’s characterizations of the lower court decisions. Smith argues that the Eleventh Circuit considered not only Smith’s lowest IQ score, but also his highest IQ scores. Smith points out that the court determined that Smith did not consistently score high, so his highest IQ score, which Hamm’s argument relies upon, could be disregarded as an outlier. Smith contends that his disqualification based on a single score would be inconsistent with federal and state judicial precedent and state law because it would violate the requirement to evaluate all the evidence collectively. Smith argues that the Eleventh Circuit explained that it conducted a holistic analysis of the evidence and did not base its decision on the low end of the lowest IQ score’s confidence interval. Additionally, Smith contends that the 95% confidence interval disputed by Hamm does not alter any burden of proof because Smith was never required to prove what his true IQ score is. Rather, Smith explains, he must prove by a preponderance of the evidence, that he exhibits “significantly subaverage intellectual functioning.” Smith argues that just one part of this evidence is the IQ scores, and he should be allowed to bring in other evidence to prove his intellectual functioning is low.

    Discussion

    JUSTICE FOR VICTIMS AND INTELLECTUALLY DISABLED PERSONS

    The Commonwealth of Kentucky (“Kentucky”), in support of Hamm, contends that the Atkins framework for determining intellectual disability has prolonged justice for victims of serious crimes. Kentucky explains that Atkins delays finality because it allows convicted criminals to delay their executions. Idaho and eighteen other states (collectively “Idaho”), in support of Hamm, argue that “evolving standards of decency” have led to constant expansions of the Eighth Amendment, which diminishes the predictability of punishment.  Idaho argues that a ruling for Smith would expand the Eighth Amendment further and invite judges to base decisions on personal moral preferences. Idaho explains that society, and victims in particular, have a legitimate expectation that all state citizens will be protected and guilty perpetrators will be punished fairly and evenly, and this uniformity is undermined when judges have too much discretion in punishment. 

    The American Association on Intellectual and Developmental Disabilities, et al. (collectively “AAIDD”), in support of Smith, argue that judges considering all evidence to determine intellectual disability, including both quantitative and qualitative data, reduces “both false positives and false negatives.” Professor Katie Kronick of the University of Baltimore School of Law, in support of Smith, argues similarly that IQ tests alone are not enough to determine whether someone has an intellectual disability, and that a more holistic review is required to prevent executing persons with intellectual disabilities. Professor Kronick argues that courts should focus on preventing persons with intellectual disabilities from unfairly suffering the death penalty. Professor Kronick points out that persons with disabilities are more likely to be manipulated during the criminal justice process, which can lead to things like false confessions.

    STATES’ ABILITY TO DEFINE “INTELLECTUAL DISABILITY”

    Idaho, in support of Hamm, argues that constantly expanding the Eighth Amendment based on federal courts’ subjective and evolving understandings of standards of decency undermines state laws. Idaho contends that the Eleventh Circuit decision denied the state the ability to determine whether a criminal defendant is intellectually disabled. Idaho asserts that this shift diminishes states’ abilities to protect their citizens and punish criminals. Idaho further emphasizes that, unlike state legislatures, medical experts are not familiar enough with the law to determine who should be excluded from the death penalty under the Eighth Amendment. The America First Legal Foundation, in support of Hamm, echoes that state legislatures should be free to determine what is and is not cruel and unusual punishment. The America First Legal Foundation argues that state legislatures are not bound to adopt the medical definitions used by medical experts. In fact, America First Legal Foundation points out, many of the definitions used by the medical community are contradictory and constantly changing, which makes them impracticable in legal settings.

    The American Psychological Association et al. (collectively “APA”), in support of Smith, argues that the scientific community should guide diagnostic criteria for intellectual disabilities because accurate diagnosis does not only impact the outcome of Atkins tests but also access to education, social programs, and medical treatment plans. The APA contends that any refinement of the medical definition of intellectual disability is based on legitimate developments obtained through scientific research. The APA further argues that the APA and similar organizations encourage states to develop policies in line with both constitutional rights and medical knowledge, rather than the organization’s own views on the morality of the death penalty. Professor Kronick, in support of Smith, adds that bright-line legal determinations based only on IQ scores are not accurate indications of intellectual disability. Professor Kronick argues that the consequences of inaccurate determinations of intellectual disability in the criminal justice system are severe and should not be left up to inaccurate methods of measurement.

    Conclusion

    Authors

    Written by:    Quinn E. Ackerman and Caroline “Kiki” Plowe

    Edited by:      Sarah Chang

    Additional Resources