Explaining the Supreme Court case that may redefine the meaning of "cruel and unusual"

Nearly 25 years ago, in Atkins v. Virginia (2002), the U.S. Supreme Court ruled that executing individuals with intellectual disabilities is unconstitutional. However, next Wednesday, the Court will hear arguments in a new case, Hamm v. Smith, which will determine if the current conservative majority on the Court intends to preserve this restriction on the death penalty. The most likely outcome in Hamm is a decision that allows states greater discretion in executing individuals with questionable intellectual disabilitiescases where experts may disagree about whether an individual qualifies as intellectually disabled. Some justices, however, have signaled a desire to go much further in limiting constitutional protections against cruel and unusual punishment.

In Bucklew v. Precythe (2019), five conservative justices seemed to advocate for a significant rethinking of how the Court interprets the Eighth Amendment, which prohibits "cruel and unusual punishment." The Court has long interpreted the Eighth Amendment to reflect "evolving standards of decency," meaning that punishments less accepted by modern society become constitutionally suspect. In Atkins, the Court referenced the growing number of states prohibiting the execution of individuals with intellectual disabilities as evidence that such executions were becoming less acceptable. However, in Bucklew, Justice Neil Gorsuchs majority opinion ignored this "evolving standards" framework and suggested that the constitutionality of a punishment should be judged based on whether it was considered cruel and unusual "at the time of the founding." This shift could have profound consequences, potentially leading the Court to overturn previous rulings that prohibit excessive punishment for relatively minor crimes. For example, jaywalking or minor drug offenses could theoretically result in life sentences under this historical approach.

While it is unclear whether the Courts majority will fully embrace this approach, the upcoming decision in Hamm could significantly narrow the scope of the Eighth Amendments protections, potentially allowing states to impose more extreme and unusual punishments. The Courts conservative bloc has criticized Atkins since its inception, and with a six-member conservative majority, it is highly plausible that the Court will find in favor of executing Smith, whose claim of intellectual disability is considered marginal. The case at hand revolves around Joseph Clifton Smith, who was sentenced to death for a 1997 robbery and murder. Smith claims that his intellectual disability prevents his execution, but he has scored just above the threshold typically used to diagnose such disabilities. He has taken five IQ tests, scoring 75, 74, 72, 78, and 74.

Under current legal standards, Smiths scores do not automatically disqualify him from a claim of intellectual disability. The Diagnostic and Statistical Manual of Mental Disorders suggests that individuals with IQ scores between 65 and 75 may still experience significant adaptive behavior challenges that qualify them as intellectually disabled. In Hall v. Florida (2014), the Supreme Court ruled that intellectual disability is not determined solely by IQ, but by a range of factors, including functional abilities. Despite Smiths IQ scores, lower courts have determined that he is intellectually disabled, citing his severe deficits in social skills, self-direction, and academics. However, the Court's current conservative majority may not be swayed by the Hall decision, as key justices who supported that ruling have since been replaced with more conservative appointees.

Hamm raises a significant issue in how the Court will balance clinical definitions of intellectual disability with the leeway granted to states. While Atkins allowed states some flexibility in determining who is intellectually disabled, later decisions, such as Hall, emphasized the need for clinical rigor in these determinations. The case also revisits the tension between deference to state law and federal standards for protecting individuals against cruel and unusual punishment.

Some justices, such as Justice Samuel Alito, have suggested that states should have more freedom in defining intellectual disability in death penalty cases. This view, however, could erode the protections set by Atkins. Alabama, which sentenced Smith to death, argues in its brief that courts should allow states more autonomy in determining who qualifies as intellectually disabled under Atkins. If the Court adopts this approach, it may significantly weaken the protections against cruel punishment by giving states more control over these decisions.

Alternatively, Justice Gorsuchs opinion in Bucklew proposes a historical analysis of what constitutes "cruel and unusual" punishment. Gorsuchs approach, which looks at punishments from the perspective of the Founding Fathers, could redefine the Eighth Amendment and remove many modern-day restrictions. If adopted, this framework could result in the approval of harsher punishments for minor offenses, such as shoplifting or traffic violations, as long as these punishments were not considered cruel by the standards of the 18th century.

The outcome of Hamm could go far beyond protecting individuals with intellectual disabilities. It might reshape the Courts interpretation of the Eighth Amendment, potentially allowing states to impose severe punishments for less serious crimes. While the final decision remains uncertain, it is clear that this case will have profound implications for how the Court applies the Constitutions protections against cruel and unusual punishment.

Author: Ethan Caldwell