Today, the Supreme Court will hear arguments in a new case that is testing what “cruel and unusual” punishment, protected by the Eighth Amendment, could look like for everyone.
The Court held it is unconstitutional to execute someone convicted who has an intellectual disability in Atkins v. Virginia (2002). However, in recent years, conservative justices have appeared interested in narrowing that scope, and a test case which would allow them to do so is on their desks.
Hamm v. Smith (2025) is about Joseph Clifton Smith, who was sentenced to death after a 1997 robbery and murder. He claims that since he has an intellectual disability, he cannot be executed constitutionally. What complicates this case? Clinicians broadly look for an IQ of around 70 and behavior to diagnose an intellectual disability. IQ tests have a margin of error, and scores of 65 to 75 are considered within range to significant limitation, per the latest Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR). But some states still try to impose rigid limits with no margin of error allowed. Smith’s disability is considered borderline because he has never scored below 70. His mean score is 74.6.
The most likely outcome for Hamm, according to Vox experts, is a decision from the Supreme Court that gives states more room to execute people with minimal claims to an intellectual disability. Yes, the decision will weigh on the role of IQ scores in determining intellectual disability, but some justices signaled they might be ready to go beyond that. In a 2019 decision, five justices seemingly approved a major reworking of the Court’s approach to the Eighth Amendment’s “cruel and unusual” punishment in Bucklew v. Precythe.
In short, cruel and unusual punishment has, for decades, been defined by “evolving standards of decency that make the progress of a maturing society.” So, as some practices became less accepted, they stood on shakier constitutional ground. In the majority opinion for Bucklew, Justice Neil Gorsuch ignored the “evolving standards of decency” framework, writing that courts should instead ask whether a punishment had fallen out of favor or become unusual “by the time of founding.” This would have major implications.
The more historical approach that conservative justices seem ready to take could risk a future where they peel back protections layer by layer, going as far as overruling the Court’s past decisions that the Constitution forbids excessive punishments for arguably minor offenses. This would leave it up to states, say, if they wanted to give someone life in prison for the likes of a small drug offense or traffic violation, in an extreme situation.
What’s at stake with this case is alarming. The Hamm v. Smith decision hasn’t been made yet, but the outlook from experts — on the current conservative Court that continues to receive criticism for seeming to reach decisions based on politics, not law — is rather grim. There are impending risks to protections on all Americans. We know based on data that marginalized communities would bear the brunt of this the most. Smith, the man sentenced in the 1997 case, may be white, but a certain Hamm decision could likely affect outcomes for Black and inmates of color most, as they are grossly overrepresented in prisons.
For now, there’s no way of knowing if the Court will have the minimum of five votes needed in Hamm. But there is a reason the Court took up this case, and the trickle down effects of a certain ruling here could put the Eighth Amendment protections of all Americans on the line.