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

The 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.

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Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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The 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.