Supreme Court lets stand Alabama ban on executing man with low IQ

On May 21, 2026, the Supreme Court handed down a one-sentence unsigned order in Hamm v. Smith (No. 24-872): the case was dismissed as "improvidently granted." That means five justices agreed the Court had made a mistake accepting Alabama's appeal in the first place. A DIG (short for "dismissed as improvidently granted") leaves the lower court ruling in place without setting any new precedent. Alabama Commissioner of Corrections John Q. Hamm had brought the appeal on behalf of the state; Hamm retired from that position on April 28, 2026, weeks before the ruling.

The vote was 5-4. Justices Brett Kavanaugh and Amy Coney Barrett joined the three Democratic-appointed justices to dismiss the case. Both are conservative Trump appointees who broke with the Court's other three conservatives — Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch.

Joseph Clifton Smith has been on Alabama's death row since 1998. He was convicted in 1997 of the robbery and murder of Durk Van Dam in Mobile County. A jury recommended death by an 11-1 vote, and the trial court imposed that sentence. Smith and an accomplice had lured Van Dam, whom they believed to be carrying cash, to a remote wooded area, where they beat him with a hammer and saw, taking $140, his boots, and some tools. After exhausting Alabama's state appeals, Smith turned to federal court.

Following the Supreme Court's 2002 ruling in Atkins v. Virginia — which barred executing people with intellectual disabilities — Smith argued his disability made him constitutionally ineligible for death. A federal district judge in Mobile agreed, and the U.S. Court of Appeals for the Eleventh Circuit upheld that finding in November 2024.

The dispute in Hamm v. Smith turned on how courts handle a capital defendant who has taken multiple IQ tests with scores that are all nominally above 70 — Alabama's statutory cutoff — but whose lowest score, when adjusted for the test's standard error of measurement, falls below it.

Smith took five full-scale IQ tests over his lifetime, scoring 75, 74, 72, 78, and 74. All five scores exceed Alabama's IQ-70 cutoff. But IQ tests carry a standard error of measurement, typically plus or minus three points, meaning Smith's lowest score of 72 could represent a true IQ as low as 69. The district court, applying a holistic review of the full record including adaptive-behavior evidence, found Smith intellectually disabled. The Eleventh Circuit said that ruling was not clearly wrong.

Alabama petitioned the Supreme Court in February 2025 after the Eleventh Circuit reaffirmed its ruling on remand. The Court granted certiorari on June 6, 2025, limiting the question to: 'Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.' Oral argument was held December 10, 2025 — more than five months before the Court disposed of the case.

The unusually long gap between argument and disposition, along with the fact that six justices wrote or joined lengthy opinions, led Supreme Court scholar Josh Blackman to suggest on the Volokh Conspiracy that Alito may have written a majority opinion that Kavanaugh and Barrett ultimately declined to join — producing the DIG instead of a merits ruling.

Justice Sonia Sotomayor wrote the lead 22-page concurrence, joined by Justice Ketanji Brown Jackson. She argued the case was a poor vehicle for answering the IQ-weighting question: the parties agreed the Eighth Amendment doesn't prescribe a single formula for weighing IQ scores, and no state legislature, state court, or federal circuit court had adopted the rule Alabama now proposed. The lower courts didn't specifically address how to "combine" or "composite" multiple scores; they used a holistic review of the full record.

Sotomayor concluded the Court properly "exercised caution" rather than imposing a new national formula. She noted Alabama's preferred approach — that courts must calculate a composite IQ score and reject an Atkins claim when that composite exceeds 70 — had never been adopted anywhere in the country.

Justice Samuel Alito's 24-page dissent was joined in full by Justice Clarence Thomas, and in parts I, III, and IV by Chief Justice John Roberts and Justice Neil Gorsuch. Roberts and Gorsuch did not join Part II, in which Alito argued for reversing the Eleventh Circuit outright. Alito outlined several approaches courts could use to determine a defendant's "true" IQ when multiple scores exist: calculate a composite, use the median, or have an expert determine a single score. He warned that without such a rule, "nearly every Atkins case will devolve into an amorphous, individualized determination."

Alito's dissent also noted that Smith "reads at an 11th-grade level" and "has never scored below 71 on a single IQ test" — characterizations contested by Smith's attorneys, who argued that academic skills are just one of many adaptive-behavior domains and that IQ scores require interpretation by trained clinicians, not raw comparison to a 70-point cutoff.

Justice Clarence Thomas wrote his own 16-page solo dissent calling for Atkins v. Virginia to be overruled entirely. Thomas argued that the Eighth Amendment's ban on "cruel and unusual punishments" applies only to the method of execution, not to the class of offender who may be executed. "Nothing in our history, from 1791 to 2002," he wrote, "suggests that there is anything unlawful about executing murderers now protected by Atkins." He also argued that Atkins has "bred only confusion and absurdity" in its 24 years on the books.

Thomas's position attracted no other justice's support. Alito's dissent did not endorse overruling Atkins, focusing instead on the narrower question of IQ-scoring rules.

The DIG is a complete win for Smith. Alabama can't execute him. State courts will now resentence him to life imprisonment without parole, and the Eleventh Circuit's November 2024 ruling that Smith is intellectually disabled stands as final.

For death penalty law broadly, the Death Penalty Information Center has documented that from 2002 through 2013, only about 7.7% of death row inmates raised Atkins claims, with an overall success rate of roughly 55%. Success rates varied enormously by state: Alabama, Georgia, and Texas had some of the lowest rates, partly because they applied strict IQ cutoffs without accounting for the standard error of measurement. The DIG leaves that variation intact: there's still no national rule telling courts how to weigh multiple IQ scores.

The question presented in Hamm v. Smith is still live. Alito warned that the absence of a clear rule will produce ongoing litigation. Future capital defendants in "borderline" IQ cases, where scores cluster near 70, will litigate the weighting question case by case in the lower courts. The American Bar Association has noted that the clinical community treats IQ scores as estimates within a range, not fixed points, and that courts ignoring this create an "unacceptable risk" of executing people who are actually intellectually disabled. That phrase — "unacceptable risk" — comes from the Supreme Court's own ruling in Moore v. Texas (2017).

The next vehicle for this question will likely come from a state with a strict IQ cutoff. Texas, which the Court has already reversed twice on intellectual disability standards (Moore v. Texas 2017 and 2019), and Alabama, which has not changed its IQ-70 statute, are the most likely sources of a future appeal.