Death by numbers

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JENNY ROUGH, HOST: It’s Monday the 25th of May.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher.

Time now for Legal Docket. It’s opinion season at the Supreme Court. The justices have 30 decisions still to hand down before they wrap up the merits cases from the current term, covering everything from women’s sports to gun restrictions.

ROUGH: But today, we start with a fundamental question about the death penalty: Does the government have the right to execute a convicted murderer who lacks normal intelligence?

The current legal landscape dates back almost 25 years: In 2002, the Supreme Court ruled that executing an intellectually disabled person violates the Constitution. Specifically the 8th Amendment prohibition on cruel and unusual punishment.

EICHER: Here is the late Supreme Court Justice John Paul Stevens announcing the decision in Atkins versus Virginia. You’ll hear Justice Stevens using a term that has since fallen out of common use.

STEVENS: We now hold that the Eighth Amendment prohibition against cruel and unusual punishment categorically forbids the execution of the mentally retarded.

In deciding this case, the court agreed with this notion:

STEVENS: The imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.

Justice Stevens explained why it’s excessive.

STEVENS: Because of their disabilities in areas of reasoning, judgment, and control of their impulses, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.

He noted that the states were in broad agreement.

STEVENS: Today our society views mentally retarded offenders as categorically less culpable than the average criminal.

ROUGH: And that brings us to today’s case: Hamm versus Smith, a case out of Alabama.

Joseph Smith is a state inmate whose lawyers claim his low IQ should spare his life under the Atkins ruling. But look at what Smith is convicted of having done: Back in 1997 he killed a man by beating him to death with a hammer and power saw.

EICHER: That’s the stark conflict: Smith’s mind may operate at a deficit, but his crime required brutal capability. Alabama points to his horrific actions and demands the death sentence be carried out.

But because of the timing of the case, the law left a massive knot:

BELANGER: The thing about this case was that the defendant, when he was originally sentenced, Atkins had not yet been decided. So it was a significant change in the law.

ROUGH: Jim Belanger is a capital defense lawyer. He didn’t participate in Smith’s case, but—

BELANGER: I’ve been lead counsel in 19 death penalty cases since 1991. I have nobody on death row.

Belanger says there’re a couple of important things to know about the Atkins case. First, the Supreme Court did not write a uniform rule for the whole country. Local officials have the final say on deciding a defendant’s intellectual disability.

BELANGER: And that’s a state court process. We’re going to let the states develop their own processes. And frankly they have, and there hasn’t been much in the way of controversy.

Second, an intellectual disability historically means an IQ of 70 or below.

BELANGER: I don’t want to say it’s a bright line rule, but it’s a bright line consideration.

EICHER: In the years since, the Supreme Court has refined Atkins. In one case, it held that states must account for a margin of error, which could swing an IQ score up or down by as many as five points. And states also must consider adaptive functioning. That means, a defendant’s ability to navigate the demands of everyday life. In other words, if a defendant cannot prove an IQ of 70 or below, but can prove intellectual disability by other factors, he cannot be executed.

BELANGER: I had a case recently where … the school records showed that this individual couldn’t tie his shoes. … Spelling tests for example, spelled cat K-A-T. And then if it got to be a four letter word, “I can’t do this.” Those were his records. So that’s corroborating information that some state statutes allow you to bring in to support a finding of intellectual disability.

ROUGH: Back to the current case: Lawyers for the convicted killer Joseph Smith argue his low IQ means his death sentence must be tossed out. Lower courts agreed, but Alabama appealed, insisting Smith does not qualify for protection.

EICHER: The debate comes down to a numbers game: Over the years, Smith took five separate IQ tests. His scores fell between 72 and 78.

Past Supreme Court rulings dealt only with a single test score. This case is different, in that it forces the justices to look at the whole range of scores.

ROUGH: And that brings us to the core issue:

BELANGER: How do we actually apply Atkins when there are multiple IQ tests? … That’s the first time it’s been in front of the court.

The justices heard oral arguments in the case last December. Alabama’s lawyer argued that Smith did not come close to proving an IQ score of 70 or below. He said states have the power to handle multiple test scores however they want — for example, by averaging them or by giving more weight to the highest score.

EICHER: But during oral argument, Justice Sonia Sotomayor pointed out a procedural flaw. She noted that Alabama never actually raised that specific argument in the lower courts. Here she is questioning Alabama’s attorney:

SOTOMAYOR: I’m having a really hard time with this case because I don’t think you’re wrong. States can define this the way they want. The problem here is … you didn’t argue this below. … Tell me where in the trial record you argued that somehow aggregating scores, that somehow median scores, that somehow there was one perfect IQ score that states could require. Just show it to me. Point me to the record.

ROUGH: That’s key. Because in the end, even though the court accepted this case this term, it declined to decide it. Last week, it issued a DIG, an acronym for dismissed as improvidently granted. In the legal context, it means the court believes it should never have agreed to hear the case in the first place.

Here’s Belanger again:

BELANGER: So improvidently granted means they granted review but then on further consideration they decided for whatever reasons that it was not ripe to be decided, the issues weren’t fully developed. … They can make that decision at any point, prior to a decision on the merits.

Usually when the court DIGs a case, it issues a one sentence order without stating a reason. But this case was different. Justice Sotomayor spent 22 pages laying out her agreement. Justice Ketanji Brown Jackson joined that concurrence.

EICHER: In it, Justice Sotomayor homed in on two points: First, the lack of an evidentiary record about how to analyze multiple IQ scores.

BELANGER: I agree with Justice Sotomayor that there has not been a split in the circuits below and therefore the question isn’t something the circuit courts need further guidance on. Since Atkins was decided 20 years ago, plus or minus, the courts have been dealing with Atkins just fine.

ROUGH: Even so, this case brought out two strong dissents. Justice Clarence Thomas wrote a solo dissent where he argued that Atkins should be overruled. He believes the Eighth Amendment’s original meaning is only about methods of punishment.

EICHER: Finally, Justice Samuel Alito wrote a 24-page dissent in which Justice Thomas joined in full, and Chief Justice John Roberts and Justice Neil Gorsuch joined largely in part. Alito does believe the lower courts need a clear rule on how to assess multiple IQ scores. He highlighted three approaches states could take: one, a composite score; two, the median value of the scores; or three, have an expert witness make a judgment call.

BELANGER: I understand what Alito is saying in the sense of it would be great to have an objective test. Like, we can figure out whether you’re AB negative or O positive bloodwise, right? So if you’re AB negative you should never get the death penalty, right? Well, that’s easily verifiable. … IQ is a relatively accurate test, but there is a margin of error.

ROUGH: Because IQ tests have a margin of error … states ought to allow defendants to introduce evidence about their background. But Alito doubted that.

BELANGER:What Alito doesn’t want is … what he would consider to be fudge factors. You can’t use that to get somebody’s IQ below 70 if their test scores don’t show that.

Belanger says Alito might also be wary of the slippery slope.

BELANGER: Atkins theoretically opened the door for other intellectual disabilities. For example autism. … So I think what Alito is afraid of is that there are other mental syndromes that are physically based, like autism, that will now open the door to more ineligible death penalties.

EICHER: Where does this leave things? Because it’s a DIG, the court has not decided the merits. It sets no precedent. The justices’ writings are purely illustrative, and there’s no need for lower courts to follow anything that’s said.

ROUGH: Right, so that means the case is done. The lower court’s decision that Smith is intellectually disabled stands.

BELANGER: He will not be executed.

EICHER: Quickly, The court also issued decisions in two cases last week.

First, Havana Docks Corporation versus Royal Caribbean Cruise. This involves an American business that operated docks in Cuba until the communist takeover, when the regime seized the property.

ROUGH: The cruise lines later used those same docks without paying the original company. In an 8 to 1 decision, the court held that Havana Docks can move forward with a lawsuit against the cruise lines under federal law

EICHER: Second, M & K Employee Solutions versus Trustees of IAM National Pension Fund. In a unanimous decision, the court sided with an employer in a dispute over pension fund math. The justices held that when a company pulls out of a multiemployer pension plan, the law does not force them to use outdated financial assumptions to calculate what they owe.

ROUGH: And that’s this week’s Legal Docket.

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