U.S. Supreme Court Declines to Review Three Cases on Scope of Protections Against Executing the Intellectually Disabled

The U.S. Supreme Court has declined to step in to resolve fes­ter­ing dis­putes about the scope of the pro­tec­tions its pri­or rul­ings afford to intel­lec­tu­al­ly dis­abled death-row pris­on­ers. On July 2, 2020, the Court denied peti­tions to review three such cas­es, allow­ing death sen­tences in Alabama and Tennessee to stand despite the appli­ca­tion of uncon­sti­tu­tion­al­ly restric­tive stan­dards in assess­ing a prisoner’s intel­lec­tu­al dis­abil­i­ty, while rebuff­ing Oklahoma​’s efforts to undo a low­er court rul­ing that had applied the Court’s deci­sions to declare an intel­lec­tu­al­ly dis­abled pris­on­er inel­i­gi­ble for the death penalty. 

The three cas­es address three appli­ca­tions of Atkins v. Virginia, the 2002 U.S. Supreme Court deci­sion that found it is uncon­sti­tu­tion­al to exe­cute peo­ple with intel­lec­tu­al dis­abil­i­ties. The peti­tions raised ques­tions about how states have imple­ment­ed Atkins and the applic­a­bil­i­ty of sub­se­quent cas­es, includ­ing Hall v. Florida, a 2014 case that struck down Florida’s strict IQ cut­off for find­ing impair­ments in intel­lec­tu­al func­tion­ing, and Moore v. Texas, which in 2017 struck down Texas’ unsci­en­tif­ic stan­dard for deter­min­ing deficits in adaptive functioning. 

In Sharp v. Smith, the Court’s deci­sion will allow a fed­er­al appeals court’s grant of relief to an Oklahoma death-row pris­on­er stand. In the oth­er two cas­es, Keen v. Tennessee and Smith v. Dunn, the Court’s denial of a hear­ing leaves in place deci­sions that favor the state.

The diag­nos­tic cri­te­ria for deter­min­ing intel­lec­tu­al dis­abil­i­ty are well estab­lished. To be con­sid­ered intel­lec­tu­al­ly dis­abled, a per­son must have sig­nif­i­cant­ly sub­av­er­age intel­lec­tu­al func­tion­ing, sig­nif­i­cant deficits in adap­tive func­tion­ing, and an onset of the dis­abil­i­ty dur­ing the devel­op­men­tal peri­od, typ­i­cal­ly defined as age 18. In both Hall and Moore, the Court rebuked the states for using out­lier prac­tices that ignored pre­vail­ing med­ical stan­dards for diag­nos­ing intellectual disability.

In Sharp, Oklahoma pros­e­cu­tors sought Supreme Court review of a fed­er­al appeals court deci­sion that found Roderick L. Smith inel­i­gi­ble for the death penal­ty because of his intel­lec­tu­al dis­abil­i­ty. A pan­el of the U.S. Court of Appeals for the Tenth Circuit applied the prin­ci­ples set forth in Moore to Smith’s case and con­clud­ed that ​“no ratio­nal tri­er of fact could have found that Smith did not meet the adap­tive-func­tion­ing prong” of the cri­te­ria for deter­min­ing intel­lec­tu­al dis­abil­i­ty. The state of Oklahoma argued that the court should not have applied Moore to Smith’s case because Moore had not been decid­ed by the time the Oklahoma courts first con­sid­ered Smith’s appeal.

In Keen v. Tennessee, death-row pris­on­er David Keen’s lawyers argued that the Tennessee courts had ​“closed the cour­t­house doors” to intel­lec­tu­al­ly dis­abled pris­on­ers by fail­ing to estab­lish a pro­ce­dur­al mech­a­nism under which they can present their claims. Keen iden­ti­fied 14 cas­es in which the Tennessee courts had ruled that no pro­ce­dur­al mech­a­nism exist­ed to hear claims that pris­on­ers were inel­i­gi­ble for exe­cu­tion because of intel­lec­tu­al dis­abil­i­ty. The Tennessee Supreme Court, Keen said, has rec­og­nized that with­out such a mech­a­nism the state may uncon­sti­tu­tion­al­ly exe­cute an intel­lec­tu­al­ly dis­abled pris­on­er, but the court has failed to cre­ate any process for lit­i­gat­ing these claims. In addi­tion, while the court has urged the leg­is­la­ture to cre­ate a pro­ce­dur­al mech­a­nism for lit­i­gat­ing intel­lec­tu­al dis­abil­i­ty in cap­i­tal cas­es, the leg­is­la­ture has not done so. ​“Without clar­i­fi­ca­tion from this Court,” Keen’s peti­tion argued, ​“Tennessee will not only exe­cute an intel­lec­tu­al­ly dis­abled man, but will, through inac­tion, lim­it the con­sti­tu­tion­al pro­tec­tion rec­og­nized by this Court in Atkins v. Virginia.” The Supreme Court’s deci­sion not to hear Keen’s case allows Tennessee’s denial of relief to stand.

The third case, Smith v. Dunn, was an appeal from Alabama death-row pris­on­er Willie B. Smith III. Alabama had denied Smith’s claim of intel­lec­tu­al dis­abil­i­ty, say­ing he had not proven suf­fi­cient­ly impaired intel­lec­tu­al or adap­tive func­tion­ing. However, it reject­ed the intel­lec­tu­al func­tion­ing por­tion of his claim on the grounds that his IQ score, unad­just­ed for mea­sure­ment errors, was 72 — two IQ points above the state’s uncon­sti­tu­tion­al IQ cut­off require­ment of 70. It reject­ed his claim of adap­tive deficits by uncon­sti­tu­tion­al­ly focus­ing on his adap­tive skills and assert­ing that those skills out­weighed his deficits. Hall explic­it­ly declared the use of IQ cut-off scores to be uncon­sti­tu­tion­al and Moore explic­it­ly stat­ed that the focus of the deter­mi­na­tion of adap­tive func­tion­ing is on the pres­ence or absence of deficits, not on whether there are countervailing strengths. 

The U.S. Court of Appeals for the Eleventh Circuit agreed that Smith would be inel­i­gi­ble for exe­cu­tion had Alabama applied a con­sti­tu­tion­al­ly valid stan­dard for deter­min­ing intel­lec­tu­al dis­abil­i­ty, but denied relief on the grounds that Hall and Moore should be applied only to cas­es that had not yet been decid­ed on appeal at the time of the Supreme Court deci­sions. Whether Smith could be exe­cut­ed, the court ruled, was pure­ly ​“a mat­ter of tim­ing”: if he was tried after Hall and Moore had been decid­ed, he would not have been eli­gi­ble for the death penalty. 

Smith fur­ther argued that the fed­er­al cir­cuit courts were split as to whether Hall and Moore should apply to all intel­lec­tu­al dis­abil­i­ty cas­es or should have only prospec­tive appli­ca­tion. The Supreme Court’s denial of review left that cir­cuit split unre­solved and allowed Smith’s death sen­tence to stand.