The Supreme Court announced Thursday that it would not decide Hamm vs. Smitha case involving a a really difficult question of the constitution about whether an Alabama prisoner can be legally executed.
The immediate result of this decision is that Joseph Clifton Smith, who is at the heart of this case, will not be executed. Smith won in a federal appeals court that had previously heard his case. And the fact that the judges decided not to decide Ham – they rejected it”as randomly generated,” to use the Court’s correct legal terminology — means that Smith’s lower court victory stands.
Although the full Court did not comment Hamsix justices joined at least one of three concurring or dissenting opinions revealing how they thought the case should have been decided. Justice Sonia Sotomayor’s concurring opinion provides a possible explanation for why her Court chose to dismiss this case. Meanwhile, the dissenting opinions of Justices Clarence Thomas and Samuel Alito reveal some of the differences among the Court’s Republicans.
In Atkins v. Virginia (2002), the Supreme Court held that it is illegal to execute a mentally disabled person. The Ham the case was largely turned on whether Smith’s IQ is low enough that he qualifies as mentally retarded. But most judges seem to throw up their hands and decide that they didn’t have a good chance of determining Smith’s IQ.
Sotomayor’s opinion suggests that Alabama may lose this case because of an ineffective defense. Among other things, he points out that none of the expert witnesses who testified in the lower court, including Alabama’s expert, used the same method to determine Smith’s IQ “that Alabama now claims is relevant.”
At least some constitutional protections against the death penalty are probably safe, for now.
Because the Supreme Court has the final say on matters of constitutional law, judges should be reluctant to decide questions that have not been fully reviewed by lower courts, due to the risk that the Court may make an irreparable mistake if it decides the case too quickly. Thus, Sotomayor argues that her Court was right to “take caution” in not ruling on a constitutional question that was not fully addressed in other hearings.
At the same time, at least some of the Republican justices appear to be moving away from the more extreme positions they took in the past. That means that at least some constitutional protections against the death penalty are probably safe, for now.
Most Republican judges seem to have made peace with them Atkins
The right side of the Court has historically opposed it Atkins absolutely. The late Justice Antonin Scalia, for example, claimed in Atkins that only people with “severe or severe” disabilities – perhaps those with an IQ of 25 or less – they are protected from execution. But, less than Atkins system, people with an IQ of 70 or below are often ineligible for the death penalty. And people who test above 70, like Smith himself, can also sometimes show that they are mentally retarded by indicators other than IQ.
But only Thomas, who wrote a different opinion Ham which was not connected with anyone else, called Atkins to be ruled.
It is particularly surprising that Justice Neil Gorsuch, who has previously issued hard-line opinions in death penalty cases, appeared to be charting a more moderate path in Ham. Gorsuch seemed to suggest inside Bucklew v. Precythe (2019) that his Court should throw out all of its 60 years’ worth of cases interpreting the Eighth Amendment’s ban on cruel and unusual punishment, and instead pass a new law that would allow the government to give very heavy punishments for minor offences.
But, among those three Ham comments, only Thomas quoted Bucklew. And Gorsuch did not agree with Thomas’ opinion nor did he agree with parts of Alito’s opinion, which called for stricter rules in Atkins case. So it appears that Gorsuch’s Bucklew comments may be orphaned.
Alito, meanwhile, wrote a split opinion, the main parts of which were joined by a total of four justices – Alito, Chief Justice John Roberts, Thomas, and Gorsuch. But only Thomas joined the part of Alito’s opinion that called for more restrictions Atkins.
The parts of Alito’s opinion that were joined by the four justices largely deal with the unusual facts at hand Ham.
It is safe to say that Smith’s claim that he is mentally disabled is marginal. Although the court considers whether the main defendant’s IQ is below 70 to determine whether the defendant is mentally retarded, Smith took several tests that measured his IQ somewhere in the 70s – and none of them indicated that he had an IQ of 70 or below.
Under the Court’s previous death penalty cases, the fact that a death row inmate weighs more than 70 is not bad for him Atkins case – in part because IQ tests have a margin of error and can overestimate the test subject’s IQ. But Alito is basically saying that someone like Smith, who took multiple tests that showed he had an IQ over 70, could be put to death.
In a section of his opinion joined only by Thomas, meanwhile, Alito asserts that “‘high scores may be more indicative’ of a person’s intelligence than low scores,” a rule that could kill defendants with high scores, some of which are below 70.
Still, it is notable that Alito focused his opinion very closely on the minutiae of Ham case, without making a wider attack Atkins or for the general rule that people with mental disabilities cannot be executed. It is difficult to assess where the full Court is Atkinsas three judges – Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett – were silent in Ham. But now it seems that the current majority of the Court is not planning a general attack Atkinsor to the Court’s broader system of determining what punishments are impermissible. That is good news for the prisoners whose lives could have been saved Atkins and similar cases.
The Republican majority on the Court is often hostile to precedents that were decided by more liberal justices. In fact, sometimes they do apparently they have been going through the checklistoverturning decisions where the right side of the Court lost and turning the dissent of justices such as Scalia or Thomas into a majority opinion. But, for now, at least, it seems so Atkins is not on the list of this Court.
