Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on Alabama's death row for more than a year waiting to find out if the Supreme Court will greenlight his execution.
Smith’s case, Hamm v. Smith, arrived at the high court in August 2023. Since then, the justices have met more than two dozen times and each time they’ve put the decision on the case off until a future meeting, reports Vox.
Following Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.
The Eighth Amendment, with its vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles).
The idea is that both groups have diminished mental capacity, at least compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes.
That idea has long been contested by the Court’s ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. In the worst-case scenario for criminal defendants, the justices could overrule more than 60 years of precedents protecting against excessive punishments.
In Atkins v. Virginia (2002) and Roper v. Simmons (2005), a coalition of Democratic and moderate Republican justices handed down decisions that barred youths and people who are intellectually disabled from being executed. Those majority decisions came down over bitter dissents from the Court’s right flank, which now has a supermajority on the Supreme Court.
At least some of the current Court’s Republicans seem eager to use their supermajority to blow up those two cases (and pretty much everything the Court has said about the Eighth Amendment in decades). So it’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law.
The Hamm case has been "relisted" in every single private conference since the justices first discussed it on October 27, 2023. That is highly unusual. Iit suggests that some particularly bitter internal negotiations are ongoing.
Hamm involves a question that would arise once the Court decided Atkins — though it is unconstitutional to execute intellectually disabled offenders, there will always be some offenders who are on the borderline of what mental health professionals consider an intellectual disability. The question before the Court is what to do with these borderline cases.
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