The Constitution forbids executing people with intellectual disability — but what happens when a defendant’s IQ scores land exactly on the borderline? That question has driven years of litigation in Alabama, in a case that has recently divided the justices of the U.S. Supreme Court.
Brutal Crime, Fragile Defendant
In 1997, Durk Van Dam was found brutally murdered in a remote area of Mobile County, Alabama, his body discovered near his pickup truck. Investigators quickly focused on Joseph Clifton Smith, who not only placed himself at the scene but gave conflicting statements — first saying he only watched the killing, then admitting participation while denying any intent to kill. A jury ultimately convicted him of capital murder, and the case moved into a penalty phase where Smith’s life history came into sharp focus.
That history was grim. Smith’s early life was marked by severe instability and abuse from both his father and stepfather, who was drunk “just about every day” and beat the children with belts and water hoses. As early as elementary school, teachers viewed him as a slow learner, and by third grade, an intellectual evaluation yielded a full‑scale IQ score of 75, leading to placement in special‑education and an “emotionally conflicted classroom.” A reevaluation in sixth grade produced a full‑scale IQ of 74, and by seventh and eighth grade, he was placed in the “Educable Intellectually Disabled program” (described as “largely parallel to the criteria used to identify mild intellectual disability today”). He went on to fail the seventh and eighth grades before dropping out.
After Van Dam’s murder, a clinical psychologist tested Smith again and recorded a full‑scale IQ score of 72. Because IQ tests have a built‑in margin of error, that score could indicate a true IQ as low as 69, which “suggests that he functions at a lower level than 97% of the general population.” Even with that evidence of low intellectual functioning, the trial judge decided that the aggravating circumstances of the crime were more significant than the mitigating evidence about Smith’s disability and background, and imposed a death sentence.
Atkins Draws a Line
Smith’s lawyers then spent years litigating what’s known as an Atkins claim: a claim that the Eighth Amendment categorically bars the defendant’s execution because they are intellectually disabled. The term comes from the 2002 Atkins v. Virginia decision, which held that executing people with intellectual disability violates the Cruel and Unusual Punishments Clause. That ruling came after Smith had already been tried, sentenced, and sent to death row, changing the constitutional ground rules in the middle of his long post‑conviction fight
After Atkins, every state that uses the death penalty had to decide how to identify people with intellectual disability for Eighth Amendment purposes. Many ended up using a three‑part test drawn from clinical manuals:
- Significantly subaverage intellectual functioning, usually reflected in IQ scores around 70 or below once you account for the test’s margin of error;
- Significant deficits in adaptive behavior, meaning problems with everyday conceptual, social, or practical skills; and
- Onset of those problems during the developmental period, before age 18.
For a capital defendant, an Atkins claim does not just ask the court to weigh mitigating evidence more heavily. It asks the court to recognize that, if all three criteria are met, the Constitution bars the state from executing them at all.
Smith’s case follows that arc. Once Atkins came down, he argued that Alabama could not execute him because his intellectual functioning and adaptive deficits, documented from grade school onward, placed him within that protected class. The problem was that while Atkins left too much discretion up to the states; many courts treated an IQ score above 70 as an automatic bar to Atkins relief and gave short shrift to clinical evidence about how a person actually functions.
In Smith’s case, Alabama courts rejected the claim by treating his IQ scores in the low‑70s as disqualifying — essentially using a rigid 70‑point cutoff to say he had not shown “significantly subaverage intellectual functioning.” After exhausting his state‑court remedies, Smith filed a separate federal habeas corpus petition under 28 U.S.C. § 2254 challenging his state conviction and sentence on federal constitutional grounds, but the federal district court similarly refused relief.
Hall, Moore, and a Second Chance
Luckily for Smith, two other SCOTUS decisions were soon handed down that reshaped the rules that had been used to turn him away. Hall v. Florida (2014) and Moore v. Texas (2017) made clear that judges cannot treat an IQ score as a fixed number or use a hard 70‑point cutoff to deny Atkins protection, and instead must account for the test’s margin of error and seriously evaluate adaptive functioning when the lower end of the range falls at or below 70.
When Smith appealed to the Eleventh Circuit, newly armed with Hall and Moore, the appellate court applied it and came out on his side. The circuit judges treated his 72 as a range that could reach 69. In light of extensive evidence of adaptive deficits dating back to childhood, they concluded that he is intellectually disabled under Atkins and that Alabama cannot constitutionally carry out his death sentence.
Alabama asked the U.S. Supreme Court to step in and reverse, arguing that the Eleventh Circuit had stretched Atkins too far and second‑guessed state courts on a heavily fact‑bound question.
SCOTUS DIGs In
Instead of reaching the merits, a narrow majority dismissed the case as “improvidently granted” (DIG), a procedural move that wipes out the grant of review and leaves the lower court’s judgment in place. In other words, the Court walked away from the dispute over how to read Smith’s IQ scores and adaptive‑functioning evidence.
But separate writings underline just how divided the Court remains over Atkins claims like Smith’s. The dismissal itself split the Court 5–4. Justice Sotomayor, joined by Justice Jackson, concurred in the decision to walk away, stressing that “intellectual disability is a condition, not a number” and warning that this was not the right vehicle to rewrite how lower courts weigh multiple IQ scores and adaptive‑functioning evidence.
On the other side, Justices Thomas, Alito, Roberts, and Gorsuch dissented from the DIG. Justice Thomas went so far as to call for Atkins to be overruled entirely, arguing that executing a person with a particular IQ does not implicate the Eighth Amendment’s ban on cruel and unusual punishment at all. Justice Alito faulted the Eleventh Circuit for being too willing to treat a single low score and adaptive‑deficit evidence as enough to bar execution.
None of that back‑and‑forth changes the outcome for Smith; he won’t be executed. But the divided SCOTUS opinion does signal that the fight over how much protection Atkins really offers people with borderline IQ scores is far from over.
