Supreme Court Roundup: Two Decisions Allow Jury Discrimination Claim to Proceed and Keep Protections for Intellectually Disabled in Place

In May 2026, the U.S. Supreme Court issued decisions regarding two key types of claims that often appear in capital cases: jury discrimination and intellectual disability. A bipartisan group of conservative and liberal justices carried each decision. The Court ruled in favor of Mississippi prisoner Terry Pitchford, allowing his jury discrimination claim to proceed; the Court separately dismissed an Alabama case as improvidently granted, which preserves a lower court finding that Joseph Clifton Smith has intellectual disability and cannot be executed. At the same time, however, the Court vacated a lower court stay and allowed the execution of Edward Busby to proceed in Texas despite expert findings that he too had intellectual disability — drawing a searing dissent from several justices.

Pitchford v. Cain: Against Egregious History of Jury Discrimination, A Valid Objection

In the 2019 decision Flowers v. Mississippi, the Supreme Court recognized egregious racial discrimination in jury selection by prosecutor Doug Evans. Over the course of six trials, Mr. Evans used peremptory strikes to remove 41 of 42 Black potential jurors. The defendant in that case, Curtis Flowers, was later exonerated from death row.

On May 28, the Court for the second time ruled in favor of a Black capital defendant who had been prosecuted by Mr. Evans and sentenced to death by the nearly all-white jury Mr. Evans secured through his use of peremptory strikes. In Terry Pitchford’s 2006 trial in Grenada, Mississippi, a small town where about 40% of residents were Black, Mr. Evans removed four of five Black potential jurors. Mr. Pitchford’s defense attorney objected that the strikes were unconstitutionally based on race in violation of Batson v. Kentucky (1986).

Batson provides a three-step framework for jury discrimination claims: 1) the defense objects that a peremptory strike was based on race, 2) the prosecutor offers a “race-neutral” explanation for the strike, and 3) the defense may rebut that reason as merely a pretext. The trial court then decides if the reason was pretextual in light of all the evidence, including the historical jury selection practices of the prosecutor and their office.

The Flowers decision followed a classic Batson analysis: the Court found that Mr. Evans violated the Constitution through his “relentless, determined effort” to remove Black potential jurors. By contrast, Mr. Pitchford’s case focused not on the merits of the Batson claim, but on the procedural question of whether his attorney had waived that claim by failing to complete the third step of the framework.

After Mr. Pitchford’s attorney objected under Batson and the trial court agreed that she had made a preliminary showing of race-based strikes, Mr. Evans offered explanations for his strikes in accordance with step two. One Black potential juror, he said, had returned 15 minutes late to court after a break; two had brothers convicted of violent crimes; and another, like Mr. Pitchford, was a young unmarried father. The trial judge declared that each reason was race neutral, then “pivoted immediately to the defense’s peremptory strikes.” Mr. Pitchford’s attorney tried to raise the Batson issue again, but the trial judge twice cut her off. “I think you already made those, and they are clear in the record,” he told her, before stating that there was “no Batson violation.” As a result, Mr. Pitchford’s counsel was never given the opportunity to argue that Mr. Evans’ reasons for striking the jurors were pretextual, nor did the trial court consider or rule on that question.

On appeal, the Mississippi Supreme Court ruled that Mr. Pitchford had waived his Batson objection, over two justices’ dissent. A federal district court then found that decision to be an unreasonable application of Batson and granted Mr. Pitchford relief. However, the Fifth Circuit Court of Appeals reversed that ruling, siding with the Mississippi Supreme Court.

In a succinct nine-page opinion, a bipartisan majority of five justices reversed the Fifth Circuit and held that Mr. Pitchford had not waived his Batson objection. Justice Brett Kavanaugh wrote that “the Mississippi trial court never conducted the essential third step of the Batson inquiry”: the judge “did not afford Pitchford’s counsel a sufficient opportunity to rebut the prosecutor’s proffered race-neutral reasons for striking the four [B]lack jurors and never determined whether the prosecutor’s stated reasons were pretextual.” Further, the trial judge “explicitly assured Pitchford’s counsel that the Batson objection was preserved.” Justice Kavanaugh has an apparent longstanding interest in jury discrimination issues and previously wrote the opinion for the Flowers majority. He was joined in the Pitchford majority by Chief Justice John Roberts and the Court’s liberal bloc, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.

“In this case, whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred — notwithstanding the repeated efforts of Pitchford’s counsel to pursue and preserve the Batson objection,” the Court concluded. The Mississippi Supreme Court’s holding that Mr. Pitchford had preserved the first step of his Batson argument but not the last step “slices Batson way too thin” and “does not make much sense.” The justices endorsed the district court’s finding that the Mississippi Supreme Court’s decision was unreasonable, meaning it met the high standard for a federal court to reverse a state judgment.¹

Justice Neil Gorsuch wrote the dissent, joined by Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. The crux of their argument was that Mr. Pitchford did not meet that strict standard for showing that the state court’s decision was unreasonable. Justice Gorsuch wrote that states “enjoy authority to fashion their own preservation rules governing Batson claims,” and the Mississippi Supreme Court’s rule that “[a]ny Batson argument not adequately presented in a trial court is ‘waived’” does not defy Supreme Court precedent.

The case now returns to the Fifth Circuit to reevaluate the district court’s ruling in light of the Supreme Court’s directives.

The focus on procedure obscured more troubling features of Mr. Pitchford’s case. He was just 18 in 2004 when he robbed a grocery store alongside a 16-year-old friend, Eric Bullins. It was Mr. Bullins who fired the three shots that killed the white store owner. A few months later, the Supreme Court ruled that juveniles were not eligible for capital punishment, and Mr. Bullins subsequently reached a plea agreement of 20 years in prison. But the state sought death for Mr. Pitchford.

The Death Penalty Information Center has found unexplained disparities that suggest racial bias may influence prosecutors’ decisions to seek the death penalty for young people under age 21. In the past twenty years, 78% of individuals sentenced to death for a crime committed before age 21 were people of color, compared to 57% of individuals over age 21. In Mississippi, Mr. Pitchford was the only person sentenced to death during this period for a crime committed before age 21.

It is now well known that the human brain does not fully develop until the mid-20s, and people aged 18 to 20 share many cognitive traits with juveniles, such as impulsivity and susceptibility to peer pressure. Yet studies find that youth of color, particularly Black youth like Mr. Pitchford, are perceived as more culpable and violent, and are thus less likely to be granted leniency compared to white youth who commit similar crimes. Prosecutors are also more likely to seek death when the victim, as in this case, was white.

See DPI’s report on death sentences for youth aged 18 to 20 to learn more.

Intellectual Disability: Atkins Protections Remain Safe

The Supreme Court issued a summary decision in Hamm v. Smith in 2024, granted review of the case again in 2025, and heard oral arguments last December. The Court signaled that it would use the case to rule on how judges should weigh multiple IQ scores when considering intellectual disability claims in capital cases. A range of outside stakeholders weighed in with amicus briefs, from scientific experts explaining how to carefully evaluate the condition, to a group of state officials who asked the Court to discard the landmark “evolving standards of decency” legal principle that has formed the basis of nearly 70 years of Eighth Amendment jurisprudence.

Yet the case came to an anticlimactic end when the Court dismissed it on May 21 as improvidently granted. This outcome, colloquially known as “DIG,” means that the lower court’s ruling is preserved, as if the Court never agreed to review it. The dismissal is a clear victory for advocates and experts who worried that a decision in the case could weaken the legal protections for people with intellectual disability.

DIG rulings are relatively rare; the last in a capital case was in 2008. Here, Alabama prisoner Joseph Clifton Smith remains exempt from execution based on the Eleventh Circuit’s ruling that a district court correctly found he has intellectual disability. Mr. Smith’s five IQ scores range from 72 to 78, and as low as 69 based on statistical adjustments; those scores alongside evidence of his adaptive deficits led experts and ultimately the lower courts to conclude he had intellectual disability.

Though a DIG decision is not always accompanied by a written opinion, multiple justices wrote separately to explain their positions in the case — revealing the vote split. Justices Sotomayor, Kagan, Jackson, Kavanaugh, and Barrett agreed to dismiss the case, while Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch indicated they would have decided it. Despite the fact that the case was dismissed, the justices’ opinions in Hamm were collectively over three times as long as the opinions in Pitchford.

In a concurrence joined by Justice Jackson, Justice Sotomayor explained that the “Court is not equipped in this case to provide any meaningful guidance on how courts should assess multiple IQ scores.” She noted that the Court had granted review on a question suggested by the U.S. Solicitor General in an amicus brief, which was not meaningfully discussed in Mr. Smith’s earlier appeals. Further, Alabama had identified no legal disagreement between lower courts as to how to approach multiple IQ scores — those courts uniformly relied on the assessment of medical experts. “Without the benefit of an evidentiary record or decisions below trained on the specific theories now advanced by the parties, this Court rightly concludes that it should not provide more detailed guidance beyond what this Court’s cases have previously said,” Justice Sotomayor wrote.

In a dissent joined by no other justice, Justice Thomas argued that the Court’s decision in Atkins v. Virginia (2002) exempting people with intellectual disability from the death penalty should be overruled. He claimed that the Eighth Amendment’s prohibition on cruel and unusual punishment applies only to methods of execution, not the characteristics of the group or individual being punished.

The main dissent was written by Justice Alito, joined in full by Justice Thomas and in part by Chief Justice Roberts and Justice Gorsuch. The dissenters argued that the Court should have decided the case to “provide much-needed guidance to lower courts.” In a section joined only by Justice Thomas, Justice Alito argued that the lower courts “relied on psychologically, statistically, and legally unsound analyses to conclude that Smith’s IQ is 70 or below”; he characterized the Eleventh Circuit’s approach as a “one-low-score rule” despite the Eleventh Circuit clarifying in the earlier remand that it considered all Mr. Smith’s scores “holistic[ally]” with adaptive functioning evidence. The dissent displayed a general skepticism towards adaptive functioning evidence, which Justice Alito described as “sundry facts about a defendant’s life before prison.”

By contrast, experts say that IQ testing only provides one piece of the puzzle. Intellectual disability is characterized by significant limitations that originated before age 22 in both intellectual functioning and “adaptive behaviors,” defined as the collection of conceptual, social, and practical skills that are learned and performed by people in their everyday lives.

Justice Sotomayor accused the dissenters of giving an “incomplete and potentially misleading” rendition of the law and science simply because they did not like the outcome in Mr. Smith’s case. “Despite the principal dissent’s professed concern that lower courts lack sufficient guidance from this Court to analyze multiple IQ scores in general, it seems that the core of dissent’s dissatisfaction is rather with the District Court’s specific conclusion in this case that Smith is intellectually disabled and thus cannot be executed,” she wrote. The “dissent looks at Smith’s five scores at face value and cannot fathom that Smith has significantly subaverage intellectual functioning.”

Though Mr. Smith’s case won five votes that saved him from execution, the Court allowed the execution of Edward Busby to proceed just a week earlier despite state and defense experts agreeing that he had intellectual disability. At one point, state prosecutors had even joined the defense’s request to find Mr. Busby ineligible for execution. Yet when Texas courts refused, as Justice Jackson noted, “Texas changed its mind, opting to proceed with the execution it once tried to abandon.” The Fifth Circuit granted a rare stay, only for the Supreme Court to vacate that stay with no explanation. The Court has lifted nearly all stays of execution on state request in the past decade.

Justice Jackson dissented, joined by Justice Sotomayor. (Justice Kagan separately noted her dissent.) “Today, the Court finds itself unable to tolerate even a brief delay…[it] grants emergency relief to ensure that Texas’s current inclination (that it must execute Busby tonight) wins out over its former one (that it could not execute Busby at all),” Justice Jackson wrote. On May 14, Mr. Busby became the 600^th person put to death in Texas in the modern era.

In capital cases, we rarely intervene to preserve life. I cannot understand the Court’s rush to extinguish it, much less in the circumstances of this case.

Justice Ketanji Brown Jackson, dissenting, Guerrero v. Busby (2026)

Explore by State