In appeal, Alabama attorney general’s office suggests revisiting previous execution cases

State challenging finding that death row inmate was intellectually disabled

By: - August 28, 2023 2:20 pm
A bag of midazolam, a sedative, used in an IV drip.

A bag of midazolam, a sedative used in Alabama’s method of lethal injection. (Getty)

Alabama is seeking to overturn a federal court’s decision to spare the life of a death row inmate the court found to be intellectually disabled.  And it may want to go well beyond that.

The Alabama attorney general’s office on Aug. 17 asked the U.S. Supreme Court Aug. 17 to reconsider the U.S. 11th Circuit Court of Appeals’ ruling that Joseph Clifton Smith was mentally disabled and vacating his execution, and suggested the court should reconsider its jurisprudence on executions of those with intellectual disabilities.

The appeal states the 11th Circuit made an error when it relied on Smith’s lowest IQ score and that his true IQ is at the bottom of the range of results from the test scores.


“Both errors wrongly distort the Atkins inquiry by placing a thumb on the scale in favor of capital offenders,” the appeal states. “Both errors trample over the State’s discretion to define intellectual disability and set burdens of proof in capital punishment cases.”

The appeal then goes on to state that the decision overrides the state’s sovereignty and its ability to enforce its criminal laws based on other court cases.

The U.S. Supreme Court, according to the Attorney General, never meant for courts to rely on using the lower end of a person’s IQ scores, and argues there has been no uniformity among the lower courts when making that determination. In another case, the 5th Circuit considered all the IQ scores and concluded that a person’s IQ score is 75 for a death penalty case. The 11th Circuit, for this case, however, took the lowest score.

Smith’s attorneys had not filed a response as of early Monday afternoon.

Smith’s IQ score has become the central issue in this twisting and winding saga that has eventually led to Marshall’s appeal to the U.S. Supreme Court, and the accuracy it measures a person’s intellectual capability.

The U.S. Supreme Court ruled in a 2002 case known as Atkins v. Virginia that executing those with intellectual disabilities violated the Eighth Amendment’s ban on cruel and unusual punishment, setting a cutoff of about 70 on an intellectual quotient test.  In Hall v. Florida in 2014, the court ruled that defendants with IQs between 70 and 75 must be allowed to offer other evidence suggesting disability.  In Moore v. Texas in 2017, it said that 70 was not a rigid cutoff and that contemporary evaluation standards must be used.

The AGs Office is requesting the U.S. Supreme Court to review the two cases because other circuits of appeals courts have applied IQ scores differently, with some taking an average or holistic approach to the scores while in other instances, such as the 11th Circuit, placing a higher weight on the lower IQ score.

A jury convicted Smith in October 1998 for the 1997 murder of Durk Van Dam during a robbery. During sentencing, Smith presented evidence concerning aggravating and mitigating factors, including that “he was under the influence of extreme mental and emotional disturbance.”

Smith’s IQ scores were submitted as part of the record, which showed a range of scores, all within 10 points of a score of 70. The Alabama trial court ruled that the aggravating circumstances outweighed the mitigating factors and sentenced him to death.

The Alabama Court of Criminal Appeals rejected his claim, as did the federal district court after it established that an IQ score of 70 as the cutoff for a person with an intellectual disability. Smith’s scores, however, were all above that.

A three-judge panel of the 11th Circuit overturned the lower court ruling in 2015, citing testimony from one of the experts in the case who said that Smith’s IQ score could be as low as 69 after considering the standard deviation of the test.

“Based on that evidence and ‘the fact that Alabama does not employ a strict IQ cut-off score of 70,’ we held that the Alabama Court of Criminal Appeals “determination that Smith conclusively did not possess significantly subaverage intellectual functioning was an unreasonable determination of the facts,’” the three- judge panel of the 11th Circuit wrote in its opinion.

The case was remanded back to federal district court and allowed Smith to present evidence of his intellectual ability. After hearing the evidence, the district court ruled in his favor, declaring him intellectually disabled and vacating his execution.

The state then appealed the decision back to the 11th Circuit who then affirmed the ruling of the district court in its opinion back in 2021.

The Attorney General’s Office argues that “the court exclusively relied on Smith’s lowest IQ score and “the court presumed that Smith’s true IQ lies at the bottom of that score’s error range.”

The AGs Office argued the 11th Circuit erred in affirming the district court’s decision because it weighted heavily Smith’s lowest score that took account of the standard error and forced his IQ score to 69, one below the threshold to be declared intellectually capable of being executed.

The circuit court also made an error assuming that Smith’s true IQ score falls at the bottom end of his range of score.

“Both errors wrongly distort the Atkins inquiry by placing a thumb on the scale in favor of capital offenders,” the AGs appeal states.

The appeal also states that the U.S. Supreme Court did not mandate the lower courts subtract one standard error of measurement (SEM) from the lowest score.

“The presumption that every IQ score errs upward by one or two SEMs is not scientific,” the AGs opinion states. “It contradicts the very notion of SEM as a range that is distributed on either side of a measurement. It contradicts common sense because the test-taker’s environment, luck, or breakfast might help or hurt his score on any given day.”

The state’s brief said that if the court’s rulings in Hall v. Florida and Moore v. Texas require the 11th Circuit’s approach, “they should be reconsidered.”

Opponents disagree, however.

“It is a little perplexing,” said Robin M. Maher, executive director of the Death Penalty Information Center, in an interview on Monday. “People with an intellectual disability are more vulnerable and less culpable because of their mental impairment, so they are not among those for whom the death penalty is reserved.”

As for IQ scores, it is not the only metric for judging a person’s incompetence.

“The Supreme Court has looked at this issue and decided this issue in both the cases of Hall and More,” Maher said. “This is a holistic evaluation about both IQ scores and adaptive functioning, so my review of this is that the court has looked at Mr. Smith, his entire experience and history, and was satisfied he is ineligible.”


Updated at 4:22 p.m. to correct Joseph Clifton Smith’s name. An earlier version called him James Clifton Smith. 

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Ralph Chapoco
Ralph Chapoco

Ralph Chapoco covers state politics as a senior reporter for States Newsroom. His main responsibility is the criminal justice system in Alabama.