WASHINGTON – After theSupreme Courtin 2002 said inmates who are intellectually disabled can't be executed, prosecutors largely stopped seeking the death penalty for defendants with clear developmental disabilities.
The borderline cases remained.
Judges often hear competing testimony from experts about whether a death row inmate has a severe enough intellectual disability to prevent execution, a threshold the high court left up to states to determine.
The justices on Dec. 10 willdelve back into the issue, debating how courts should assess the results of multiple intelligence tests when making close calls.
Convicted murderer's IQ scores varied
One hundred and forty-four people have had their death sentences vacated due to intellectual disabilities since 2002,according to the Death Penalty Information Center.
Whether the high court will now make raising a claim harder is a matter of life or death for Joseph Smith, an Alabama inmate on death row for a brutal murder in 1997.
Smith's IQ scores have ranged from 72 to 78.
Because IQ tests have an error range, lower courts said Smith's IQ could be below 70, one of the factors for defining intellectual disability.
But the statearguesthat because all five test scores are above 70, Smith can't prove he's disabled by a preponderance of the evidence.
"Joseph Smith is not intellectually disabled, and the Eighth Amendment does not override the death sentence he earned for murdering Durk Van Dam," Alabama Attorney General Steve Marshall said in a written brief.
Justice Department backs Alabama's right to execute Smith
Smith was convicted of killing Van Dam, who received 35 blunt force injuries and wounds from a saw on his neck, shoulder and back.
The Justice Department backs Alabama, arguing some judges are confused about how to evaluate multiple IQ tests under Supreme Court rules for what counts as cruel and unusual punishment, which is prohibited by the Eighth Amendment to the Constitution.
About 10% of people on death row have claimed that an intellectual disability bars their execution. Roughly one-third of the claims have been successful, according to John Blume, director of the Cornell Death Penalty Project at Cornell Law school.
That's a significant success rate for claims raised by death row inmates, he said.
Lawyers for Smith contend that multiple IQ scores must be assessed "holistically," which includes testimony from experts about their validity. And when IQ scores alone are not conclusive, they told the court, defendants can offer additional evidence.
That's what the lower courts did when finding Smith could not be executed, they argued.
Judge called Smith a `close case'
Alabama law defines intellectual disability as an IQ of 70 or below, "significant or substantial deficits in adaptive behavior" and the onset of those qualities before age 18.
U.S. District Judge Callie V. S. Granade called the evaluation of Smith's mental functioning a "close case" but wrote "the evidence indicates that Smith's intelligence and adaptive functioning has been deficient throughout his life."
The Atlanta-based 11thU.S. Circuit Court of Appeals agreed.
The Supreme Court's 2002 decision that executing someone with an intellectual disability violates the Eighth Amendment left up to states how to make that determination.
But later decisions in 2014 and 2016faulted FloridaandTexas for how they evaluatedthe disability.
The court said states can't rely on a single IQ test, must take into account the possible error range in tests, and must also consider other factors.
The Justice Department argues that if those previous rulings prevent Alabama from executing Smith when all of his five IQ scores were above 70, they should be overturned.
Mental health organizations weigh in
Mental health organizations told the Supreme Court there's "broad scientific and professional agreement" on how to determine intellectual functioning, which includes considering more than test scores.
"Intellectual disability diagnoses based solely on IQ test scores are faulty and invalid," the American Psychological Association and the American Psychiatric Association wrote in a brief supporting Smith.
States generally follow those guidelines, according to Blume, the legal expert at Cornell Law School.
He found it odd that the Supreme Court agreed to take the case and said the justices could quickly determine lower courts are generally handling multiple IQ tests correctly.
"Maybe they thought there was a bigger problem," Blume said of the justices. "There's not confusion on this."
But Marshall, Alabama's attorney general, said the high court took the case to provide needed clarity on the cumulative effect of scores.
However the court chooses to do that, Marshall said, "we think we win."
This article originally appeared on USA TODAY:Supreme Court weighs execution standards for intellectually disabled
