More than two decades ago, the Supreme Court drew a line in the sand regarding the death penalty. In Atkins v. Virginia, the court ruled that executing people with intellectual disabilities constituted the kind of cruelty prohibited by the Eighth Amendment. In his majority opinion, Justice John Paul Stevens said an emerging national consensus (what he called the “evolving standards of decency”) recognized that “because of their disabilities in areas of reasoning, judgment, and control of their impulses,” some people “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”

Stevens also wrote that the people who experience those disabilities would not be deterred from committing crimes by the threat of capital punishment. As a result, he wrote, quoting another case, putting them to death would amount to “nothing more than the purposeless and needless imposition of pain and suffering.”  

Justice Clarence Thomas was one of three dissenters from the Atkins decision. Ever since, he has insisted that it was wrongly decided, that the court overstepped its authority, and that there is and should be no constitutional barrier to executing anyone, no matter how low their IQ or how severely disabled they are. On Thursday, Thomas came within one vote of turning back the clock to a time when states had no scruples against putting people with intellectual disabilities to death.

The case decided Thursday, Hamm v. Smith, concerned the state of Alabama’s attempt to execute Joseph Smith for a 1997 murder. The legal issue was how the courts should evaluate evidence of intellectual disability in a case where the defendant had different scores on several IQ tests and severe deficits in his ability to function in daily life. The lower federal courts embraced a “holistic” approach and decided that Smith could not be executed. Alabama appealed.

A five-justice majority — the Supreme Court’s three liberals plus Justices Brett Kavanaugh and Amy Coney Barrett — allowed the lower court rulings to stand. Thomas’ dissent did not hide his disappointment. He minced no words, calling Atkins “egregiously wrong” and “unworkable.”

To drive the point home, Thomas wrote, “Nothing in our history … suggests there’s anything unlawful about executing murderers now protected by Atkins.” He called on the court to overrule that case and “restore ‘the Cruel and Unusual Punishments Clause’s fixed meaning.’”

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In Atkins, Thomas joined a dissent authored by a colleague, Justice Antonin Scalia. Scalia pointed out that the decision “adds one more to the long list of substantive and procedural requirements impeding imposition of the death penalty imposed under this Court’s assumed power to invent a death-is-different jurisprudence.”

“None of those requirements,” Scalia wrote, “existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus.” Then, conjuring a problem that was little more than a figment of their imagination, Scalia claimed that “one need only read the definitions of mental retardation adopted by the American Association on Mental Retardation and the American Psychiatric Association … to realize that the symptoms of this condition can readily be feigned.”

In the years since Atkins, the court has fleshed out its protections. In 2014, for example, the court recognized the “inherent imprecision” of IQ tests and decided that using them alone as a “strict cutoff” would be neither “proper nor humane.” Scalia, Thomas and Chief Justice John Roberts joined a dissent, this time authored by Justice Samuel Alito, that argued the court wasn’t even applying the Atkins precedent correctly. In 2019’s Moore v. Texas, Thomas joined a dissent from Roberts in which the chief justice wrote that Atkins did not require “absolute conformity to medical standards” in determining who is intellectually disabled.

In his Hamm dissent, Thomas brought more than two decades of criticisms together.

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College.