Is IQ of 72 too low to dodge death penalty? Supreme Court wrestles with cutoff

The Supreme Court struggled Wednesday to determine when someone is too mentally disabled to be executed for crimes, with the justices pondering when IQ tests or more subjective yardsticks are sufficient methods to assess intellectual ability.

In previous rulings, the court banned capital punishment for the mentally infirm and suggested that an IQ score of around 70 was a good demarcation point.

Now the justices face a case where the defendant, convicted murderer Joseph Smith, scored in the 70s on five IQ tests and Alabama courts determined that he was mentally sound but a federal court disagreed.

“What we are looking for here under our precedents is the evolving standard of decency that exists on this issue about how to decide whether someone who’s sentenced to death has significantly subaverage intellectual functioning,” said Justice Samuel A. Alito Jr., a George W. Bush appointee.

Justice Alito said the high court established in the 2002 Atkins case ruling that executing the mentally disabled violated the Eighth Amendment’s ban on cruel and unusual punishment. That decision suggested a 70 IQ score as a presumptive indicator.

Later cases, 2014’s Hall decision and 2019’s Moore case, said the 70 IQ number can’t be a rigid cutoff, urged multiple tests, told courts to account for the margin of error in a score, and said when scores are clustered around 70, courts must look at other factors.

In Smith’s case, his five scores were 72, 74, 74, 75 and 78.

The federal district court said that because the margin of error was 3 points on the 72 test, it meant Smith could have scored as low as 69, which triggered an examination of the other subjective factors. Those, the judge said, proved that Smith was, in fact, too disabled.

Robert Overing, deputy solicitor general for Alabama, said the scores, taken together, were high enough that the judge didn’t need to delve more deeply.

“The lower court changed the rules,” he said. “Here, every identified method of handling multiple IQ scores favors the conclusion that Smith is not intellectually disabled.”

He said defendants have incentives to artificially try to lower their scores, so even some scores below 70 can’t be taken as the final answer.

Chief Justice John G. Roberts Jr., a George W. Bush appointee, suggested that the approach was too “results-oriented.”

Justice Sonia Sotomayor, an Obama appointee, said she didn’t see any cases where courts approached death penalty decisions the way Alabama is arguing.

“You’re making something wholesale up, and you’re claiming there’s disagreement in the lower courts. I don’t see all that much disagreement,” she told Mr. Overing.

The Justice Department, which also disagreed with the lower court ruling, suggested that IQ isn’t always the end of the inquiry. It also said the federal district judge erred by giving too much weight to subjective measures of adaptive functioning intelligence.

Harry Graver, assistant solicitor general at the Justice Department, said the court should have stacked those other yardsticks against the five IQ scores above 70.

“There’s a big difference between saying you can move on and look at other evidence and saying you can forget about IQ entirely,” Mr. Graver said.

That seemed to resonate with Justice Elena Kagan, an Obama appointee.

“You have to allow the person to come in with adaptive function evidence, but, of course, you can say this is outweighed by the fact that there’s multiple scores on one side,” she said.

Mr. Overing, Alabama’s attorney, said IQ “has always been the primary criterion.”

“Primary, but not the sole,” countered Justice Ketanji Brown Jackson, a Biden appointee.

Justice Neil M. Gorsuch, appointed by President Trump, said the court’s jurisprudence in this area was evolving. He said the 2002 Atkins decision was a “strong” statement to states to set some guardrails but gave them leeway on how to implement them.

He wondered whether the lower federal judge should have been involved at all, given that Smith’s contention is that Alabama violated its own laws in not viewing his mental abilities holistically.

“At the end of the day, a federal habeas court cannot grant relief on the basis of a violation of state law,” the justice said.

Smith, born in 1970, came from a troubled home with an abusive father and, later, an abusive stepfather. He dropped out of school in the seventh grade after falling well below grade level and was classified as “educable mentally retarded,” which roughly translates to an IQ of 75 and below.

In 1997, he was on work release from a sentence for burglary when he and an accomplice robbed and killed a man, stealing $140 from him and pawning his tools for an additional $200.

He confessed to the crime.