The Supreme Court’s Death Penalty Jurisprudence Is Still a Cruel and Unusual Joke

Nothing in the Constitution prevents the execution of dumb guys who kill people.

T he Supreme Court this morning dumped from its docket an already-argued death penalty case, Hamm v. Smith, in an unsigned, one-line, 5–4 per curiam opinion saying that certiorari had been “improvidently granted.” Given that there were four dissenters, we know that Justices Brett Kavanaugh and Amy Coney Barrett joined the three liberals in the outcome, but not why. (Justice Elena Kagan also joined none of the written opinions.) This is now the second time in three years that the Court has taken the Hamm case and later let it go without offering any meaningful guidance to lower courts on the issue it presents: how the Eighth Amendment’s ban on “cruel and unusual punishments” applies to the execution of “mentally retarded” murderers who may or may not have an IQ slightly below 70.

The Court thus leaves standing an Eleventh Circuit decision — conflicting with the decision of the Supreme Court of Alabama — preventing Alabama from carrying out a death sentence for a 28-year-old murder conviction on the grounds that the murderer is a dumb guy.

Everything Wrong at Once

This whole picture is ridiculous. Nothing in the Constitution authorizes federal judges to apply IQ tests to murderers to decide whether they can be executed or not — much less to engage in statistical analyses of five IQ tests on the same defendant, as was at issue in Hamm. All five admissible tests of the IQ of Joseph Clifton Smith, the defendant, came in above 70. As a result, the entire case is about whether the statistical margin for error puts him below 70 if you measure the range from his lowest score that was considered by the courts or place it in an undefined “holistic” review. Given that Smith reads at an eleventh-grade level and was capable of crimes involving advance planning to make money, this isn’t about whether he should have been committed to a group home, but just about whether he’s not very bright. When the robbery for which he recruited an accomplice and killed a man yielded only minimal cash, he stole the victim’s tools and took them to a pawn shop, which admittedly was pretty stupid, but hardly proof of being legally “retarded.”

Now, IQ tests have their uses, but IQ testing wasn’t even invented until 1905, so its application as a standard for deciding when the death penalty can apply would have made no sense to the people who ratified either the Eighth Amendment in 1791 or the 14^th Amendment (by which it applies to the states) in 1868. The Court has long held that employers are barred from using IQ tests for hiring on the theory that the test has racially disparate impacts, but apparently, they are good enough to decide who lives or dies. (Smith, for what it’s worth, is white.) And the use of IQ tests spawned its own collateral litigation, because only five of the nine tests he took got admitted into evidence.

At the Founding, unless you were so incapable of knowing right from wrong that you couldn’t be punished for a crime, you got the same sentence as anybody else — which often meant the gallows for murder. We used to call that concept “equal justice under law.” Instead, we now have doctrines under which a man can stand trial and be sentenced to life in prison for intentional, premeditated murder, but that same man can’t be executed for that same crime because he’s not quite smart enough for the electric chair. The Court is now wrestling with how to apply a 21^st-century, IQ-based standard that was written by Justice John Paul Stevens and five of his colleagues in 2002 (in Atkins v. Virginia) and never ratified by the American people, when it ought to be applying the Constitution. Whatever this is, it’s not law.

Second, whether you love, loathe, or are conflicted about the death penalty, it is absurd that it should take 28 years of litigation to decide its application. It only took a year to convict and sentence Smith, who confessed to the crime. To this day, nobody is disputing the facts of the crime, a cruel and unusual murder committed with a plan and a saw. Just two days after Smith was let out of prison on work release for burglary, he carried out the plot to rob his victim. Yet, almost three decades have passed without his sentence being carried out — and only now have the courts resolved whether it would be. Whatever this is, it’s not justice — for anybody.

There are a couple of reasons for the exorbitant delays. One, of course, is the death penalty defense bar itself, which seeks to protract litigation precisely as an end in itself to thwart the administration of executions — and then complains that it is cruel and unusual punishment for murderers to be kept in suspense for years by their own litigation choices. A second is the complexity and vagueness of rules such as the Atkins rule, which leads to endless appeals over issues completely unrelated to whether the defendant was guilty, got a fair trial, or was competent to be punished with jail time. A third is that the Court itself not only handed down a brand-new standard that disregarded precedent and was confusing to apply, but has kept on changing the rules, resetting the clock for every case in the pipeline to be appealed anew under whatever decision further refines the applicable test. Whatever this is, it’s not guidance to the lower courts.

About That Constitution Thingie

Only Justice Clarence Thomas, dissenting alone, had the courage and candor to call out Atkins for being completely wrong and in need of immediate overruling. But he might not be alone forever.

As Thomas has written before and reiterated today, the commonsense meaning of “cruel and unusual punishments,” and the meaning that was universally shared in 1791 and 1868, was that it “concerns cruel and unusual methods of punishment.” The textual clues are obvious from the fact that it refers to “punishments,” plural; that it precedes the clause with bans on “excessive bail” and “excessive fines,” both of them involving types of government action, and that it does not repeat the word “excessive” when dealing with punishment even though that word modifies the first two nouns in the Eighth Amendment’s one sentence. Thomas notes as well the actual debates leading to the amendment’s ratification and the historical background of the Eighth Amendment as a rejection of terrorizing punishments such as disembowelment and drawing and quartering. Defenders of the Atkins rule and similar extensions of the clause have never really pretended that they were applying the Constitution as originally understood.

There are three arguments for the Atkins rule and others like it in the Eighth Amendment area. The first, which is what actually drives most of the defenders of such rules, is that the death penalty is wrong, so judges should use any means necessary to stop executions, whether or not that involves being faithful to the law. This would be appropriate if we lived in a theocracy where judges answered to a law above man’s law, but it makes a sham of the rule of written law. We should be familiar by now with how the rule of lawyers as a means by which social progressives treat written law as a word game to conceal the naked abuse of power is yet another contributor to right-populist cynicism of the entire legal system and the constraints of law. If you’re making it up as you go along and justifying it with the smooth faux legalism of fancy educated people, don’t be surprised when this is how you get more Trump.

Second, Atkins is defended as precedent. But it wasn’t a brand-new rule minted in 2002; it actually overruled a 13-year-old precedent, Penry v. Lynaugh, which had considered mental retardation a potential mitigating factor but not a constitutional bar to executions under the Eighth Amendment. Two members of the Atkins majority (Sandra Day O’Connor and Anthony Kennedy) actually flipped from the Penry majority (which was written by O’Connor) to the Atkins majority. The shabby treatment given to Penry by the Atkins majority surely undermines any claim that respect for precedent alone ought to preserve it.

Moreover, as today’s dissenters noted, when the Court in Atkins decided that the “mentally retarded” could not constitutionally be executed, it didn’t even define what “mentally retarded” meant (which would have been a less problematic question if it was applying a standard based in text, history, and tradition rather than made up judicially). At the time, Atkins appeared to give states a lot of latitude to statutorily define mental retardation, but this standard was rewritten by the Court at least twice since then. In Hall v. Florida (2014), the Court appeared to apply a 70 IQ threshold, but with more wrinkles regarding the margin for statistical error in such tests, and introduced more consideration of medical expertise and scientific studies, thus proliferating the issues to be litigated. In Moore v. Texas (2017), the Court retreated from earlier language that seemed to let courts consider the kinds of evidence of retardation that would have been the only available evidence in 1791 or 1868 — that is, proof visible to lay jurors of how the murderer functioned in society — in favor of a still-larger role for scientific standards set and applied by elites. All of this happened long after Smith’s original sentencing.

As Justice Samuel Alito noted in a dissent joined by Thomas and (in this and some other parts) Chief Justice Roberts and Justice Neil Gorsuch, the further one gets from using IQ scores — whatever their flaws — the more “Atkins proceedings will be little more than battles of experts,” where “whether a defendant lives or dies will hinge on which expert a judge finds more credible.” Again, so much for equal justice or the rule of written law. In terms of respect for precedent, the combination of constantly shifting and unclear standards undercuts the whole basis for blindly following Atkins.

Third, the death penalty opponents’ most serious argument about what the Eighth Amendment does and doesn’t permit is that “cruel and unusual” are adjectives, like “reasonable” or “due” (as in due process), and thus incorporate some level of judgment that can change over time. It is certainly the case that banning “unusual” punishments, which was intended at the time to preclude the government from hauling out some horrifying form of torture that had fallen into disuse over time, reflects that a method of punishment that has grown totally obsolete can become unconstitutional over time. But merely to look at how this standard has been applied is to see how that fig leaf of a theory has been abused. Courts such as the Atkins cite “evolving standards of decency” that give a lot of leeway for judges to apply their own preferences and those of scholarly and legal elites rather than the decisions of democratic polities.

Moreover, the main metric used is to find that small changes to the number of (usually blue) states banning a form or use of execution shows that a punishment has now “evolved” out of usage. In Atkins, the Court cited bans on executing the “retarded” in 18 states that had the death penalty, compared with two states at the time of Penry. If you are keeping score at home, 18 states is seven less than a majority of the country, one less than a majority of the states that then had the death penalty, and less than half the number (38) required under Article V for the collective action of states to amend the actual text of the Constitution. In the Court’s cases, “evolving” has sometimes entailed only a fairly small movement of states in one direction, while the Court tends to disregard movement in the other direction, and then — once the issue of “evolution” has been decided — no further evolution by democratic electorates is permitted.

Time to Reconsider

As Thomas noted, the theoretical foundations of Atkins have since collapsed: The Court has retreated in recent years from deeming all “excessive” punishments to violate the Eighth Amendment, and it has stopped entirely deploying the “evolving standards of decency” approach to new limits to the death penalty. Yet, it leaves Atkins in place, justified neither by text nor theory nor workability nor respect for precedent. Moreover, the Atkins rule “degrades the mildly intellectually disabled by putting them on a level with infants, imbeciles, and domestic animals — those who cannot have known better.” And why? Thomas is right: “We should end the hopeless enterprise that this Court today shows it cannot control . . . Atkins also cannot survive this Court’s more recent stare decisis criteria because it is egregiously wrong, unworkable, and has created no legitimate reliance interests.” On that latter score, he added: “Prospective murderers who would argue that they are too unintelligent to be executed are not planning murders in ‘reliance’ on this Court’s Eighth Amendment jurisprudence. . . . Nor, if they were, would such a reliance interest be ‘legitimate.’” It also wouldn’t help Smith, who committed murder five years before Atkins.

Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, argued that Smith met the Atkins standard for “retardation.” Sotomayor argued as well that the evidentiary record below was inadequately developed on the key issues after 28 years for the Court to properly review — but that, of course, is a direct consequence of the lower courts having had to comply with vague and constantly shifting legal rules emanating from One First Street: “Neither the District Court nor the Eleventh Circuit specifically addressed whether a court must consider the ‘cumulative effect’ of Smith’s IQ scores by combining them using a specific method, or whether one method is better than another, or even how a court should go about deciding which method is preferable.” And of course, Sotomayor cited the work of the American Psychological Association and the American Association on Intellectual and Developmental Disabilities, as if these were neutral observers without an agenda.

Alito’s opinion clashed with Sotomayor’s as methodologically unsound, but also concluded with a warning, conspicuously joined by Roberts and Gorsuch: “If this Court continues to shy away from opportunities to provide workable doctrine, we should not be surprised if petitions asking us to overrule Atkins, Hall, and Moore arrive at our doorsteps soon.” As we have seen in recent years, the fact that only Thomas called openly for reconsidering Atkins and that Kavanaugh and Barrett kept their silence probably signals that the Court is very unlikely to go as far as Thomas would, but it may yet be persuaded that Atkins has made enough of a mess that it ought to be at least pared back.