The Fate of Atkins in a Post-Dobbs Era: How State Discretion Risks Harm to Intellectually Disabled and Black Defendants

The Supreme Court’s stance on the death penalty has evolved over time.^[1] In Furman v. Georgia, the Court held that the death penalty violated the Eighth Amendment, only to reinstate it in Gregg v. Georgia four years later.^[2]  As the Court continued to interpret “evolving standards of decency,”^[3] it later categorically barred the execution of defendants with an intellectual disability in Atkins v. Virginia.^[4]  To determine if an individual is intellectually disabled, they must demonstrate subaverage adaptive skills that existed before age eighteen.^[5]  The Court has also recognized that IQ scores carry a ±5 margin of error and has prohibited states from precluding further evaluation solely on a score above 70.^[6] When a person’s IQ score falls within the margin of error, they must be allowed to submit additional evidence of an intellectual disability.^[7]  Despite this, states retain discretion to determine how an intellectual disability is proven and identified.^[8]  As a result, states that have not abolished the death penalty do not have a uniform standard in determining whether a defendant has an intellectual disability that would spare them from execution.^[9]  Thus, states apply varying IQ thresholds and assign different burdens of proof for defendants to establish an intellectual disability.^[10]

Because of these inconsistencies, incarcerated individuals risk wrongful executions, which disproportionately affect Black Americans.^[11]  Depending on a state’s standards, it may be more difficult for a defendant to prove they have an intellectual disability.^[12]  In a post-Dobbs era that emphasizes state discretion, intellectually disabled Black defendants are at a greater risk of being denied the protections granted to them in Atkins and potentially being wrongfully executed because of states’ determination of an intellectual disability.^[13] As the country waits for the ruling on Hamm v. Smith, a case where a capital defendant was found to be intellectually disabled despite his fluctuating IQ scores, Dobbs could influence whether the Court gives greater deference to state legislatures to determine a defendant’s death eligibility, which could negatively impact Black defendants.

The Court in Atkins established a three-part test to determine whether an individual has an intellectual disability and is exempt from the death penalty. ^[14]  The first step requires assessing a defendant’s intellectual functioning.^[15]  Intellectual functioning is assessed using IQ test scores, with scores below 70 indicating below-average intellectual functioning.^[16]  Adaptive behavior includes social and practical skills, such as communication, interpersonal skills, and self-direction.^[17]  

 Twelve years after Atkins, the Supreme Court limited states’ discretion further in Hall v. Florida. The Court ruled that states may not impose a strict cutoff IQ score^[18] that forecloses further inquiry into a defendant’s intellectual disability.^[19]  The Court reaffirmed in Hall that IQ scores are not to be understood as a fixed score but as an approximation that must be considered with its standard error of measurement (SEM) of ±5 and must be taken into account when analyzing each score.^[20]  The Court further held that when a defendant’s IQ score falls within the margin of error, the defendant must present additional evidence of an intellectual disability, including testimony regarding limitations in adaptive functioning.^[21]

States circumvent Hall by continuing to establish strict IQ cutoffs and presumptions that remain unchallenged and make it harder for defendants to meet their burden. In Arkansas, a rebuttable presumption of an intellectual disability is created when a defendant’s IQ score is 65 and below.^[22]  While this benefits individuals who score within this range, others must continue to meet their burden of proof if their score does not meet this criterion.^[23]  Oklahoma strictly bars defendants who receive an IQ score of 76 or above from asserting an Atkins claim.^[24]  Despite the Court’s ruling in Hall, many defendants in Oklahoma are not granted the opportunity to prove an intellectual disability at all.^[25]  South Dakota, on the other hand, imposes a presumption against intellectual disability when a defendant’s IQ score is above 70,^[26]contrary to studies that state a score ranging between 70 and 75 as indicative of an intellectual disability.^[27]

Additionally, states make it difficult for defendants to prove an intellectual disability by enforcing a higher burden of proof. For instance, Arizona requires that defendants prove they have an intellectual disability by clear and convincing evidence.^[28] Before the legislation changed in 2025, defendants in Georgia were required to prove an intellectual disability beyond a reasonable doubt, the same burden of proof the prosecution must prove in their case against the defendant.^[29]  Because of their discretion, states can adopt measures that limit protections for intellectually disabled defendants.

Hamm v. Smith presents another example of states circumventing Atkins-Hall.  After filing an Atkins claim, the Respondent, Joseph Clifton Smith, had several IQ scores ranging from 72 to 78.^[30]  The District Court found that Smith has an intellectual disability.^[31] However, the Commissioner of the Alabama Department of Corrections appealed to the Supreme Court to overturn the district court’s decision.^[32]  The Commissioner argued that multiple IQ scores should be considered cumulatively rather than individually.^[33]

In the case of Hamm, in an era of post-Dobbs jurisprudence, there is a rational fear that the Supreme Court will wither the protections afforded in Atkins and Hall for the sake of giving more deference to the state’s legislatures. The Atkins court relied on its own interpretation of the Eighth Amendment and evolving standards of decency, and it was not rooted in judicial precedent.^[34]  In Dobbs, the majority noted that Roe was not grounded in precedent but rather the Court’s own interpretation.^[35]  If Hamm increases state discretion, it will erode Hall’s protections and worsen racial disparity among death row defendants.

Eroding Hall by expanding state discretion in determining whether an individual has a valid Atkins claim will disproportionately harm Black Americans. 9% of Black children have an intellectual disability and are more likely to be diagnosed with one compared to Hispanic, White, and Asian children.^[36] 66% of intellectually disabled defendants sentenced to death are Black Americans.^[37]  Greater state discretion may further increase the risk of execution of Black defendants, even with clinical evidence of an intellectual disability.

Two consequences will occur if the Supreme Court rules in favor of Alabama in Hamm. The most noticeable consequence would be that Hall v. Florida is weakened further. The second of which is that it will make it easier for states to decline Atkins claims to Black Americans. States could view IQ scores in the aggregate or merely look at the highest score and disregard lower scores that fall within the SEM range.

The aftermath of Dobbs v. Jackson has created an environment that allows states to expand

their discretion to harm marginalized groups.^[38] Dobbs, and possibly Hamm, make way for states to use their discretion as a tool to circumvent Atkins to carry out executions of two marginalized and intersecting groups. Broad state discretion and deference to their legislature ultimately give states leeway to erode marginalized groups’ rights. The likelihood of this Court overturning Dobbs is unlikely. Instead, the Court must enforce its judicial precedent, declare the statutes unconstitutional, and enforce strict compliance with its precedent.

^[1] See Furman v. Georgia, 409 U.S. 238 (1976); Gregg v. Georgia, 428 U.S. 153 (1976)

^[2] See Gregg, 428 U.S. 153 (1976).

^[3] Atkins v. Virginia, 536 U.S. 304 (2002).

^[4] Id. at 312.

^[5] Id. at 318; What is Intellectual Disability?, Aᴍ. Psʏᴄʜɪᴀᴛʀɪᴄ Ass’ɴ (Feb. 9, 2026), https://www.psychiatry.org/patients-families/intellectual-disability/what-is-intellectual-disability [https://perma.cc/S5RD-KB6S].

^[6] Hall v. Florida, 572 U.S. 701, 712-14, 704 (2014).

^[7] Id. at 723.

^[8] See generally Atkins, 536 U.S. 304.

^[9] Jennifer LaPrade & John L. Worrall, Determining Intellectual Disability in Death Penalty Cases: A State-by-State Analysis, 3 J. Cʀɪᴍ. Jᴜsᴛ. ᴀɴᴅ L. 1, 8-14 (2020).

^[10] Compare Ariz. Rev. Stat. Ann. § 13-753(G) (West 2011) (defendant has the burden of proving an intellectual disability by clear and convincing evidence), with Nᴇʙ. Rᴇᴠ. Sᴛᴀᴛ. Aɴɴ. § 28-105.01(4) (West 2025) (defendant has the burden of proving an intellectual disability by a preponderance of the evidence).

^[11] Black Americans make up 13% of the United States’ population, yet they make up 40% of incarcerated individuals on death row. Death Row Overview: Racial Demographics, Dᴇᴀᴛʜ Pᴇɴᴀʟᴛʏ Iɴғᴏ. Cᴛʀ. (Oct. 1, 2025), https://deathpenaltyinfo.org/death-row/overview/demographics[https://perma.cc/5632-NLJD]; Nᴀᴛ’ʟ Rᴇɢɪsᴛʀʏ ᴏғ Exᴏɴᴇʀᴀᴛɪᴏɴs, Rᴀᴄᴇ ᴀɴᴅ Wʀᴏɴɢғᴜʟ Cᴏɴᴠɪᴄᴛɪᴏɴs ɪɴ ᴛʜᴇ Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs 2022 1 (2022) https://exonerationregistry.org/sites/exonerationregistry.org/files/documents/Updated%20CP%20-%20Race%20Report%20Preview.pdf [https://perma.cc/H6SU-26CJ]. Of all exonerated individuals, Black Americans make up the majority of exonerations at 53%. Nᴀᴛ’ʟ Rᴇɢɪsᴛʀʏ ᴏғ Exᴏɴᴇʀᴀᴛɪᴏɴs, supra note 11 at 1.

^[12] Compare Oᴋʟᴀ. Sᴛᴀᴛ. Aɴɴ. tit. 21, § 701.10b(C) (West 2019) (“[I]n no event shall a defendant who has received an intelligence quotient of seventy-six (76) or above on any individually administered, scientifically recognized, standardized intelligence quotient test administered by a licensed psychiatrist or psychologist, be considered intellectually disabled, and thus, shall not be subject to any proceedings under this section.”), with Aʀᴋ. Cᴏᴅᴇ Aɴɴ. § 5-4-618(a)(2) (“There is a rebuttable presumption of intellectual disabilities when a defendant has an intelligence quotient of sixty-five (65) or below.”)

^[13] See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 300 (2022) (“It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot substitute their social and economic beliefs for the judgment of legislative bodies.”) (internal quotation marks omitted).

^[14] Atkins v. Virginia, 536 U.S. 304, 318 (2002).

^[15] Id.

^[16] Defining Criteria for Intellectual Disability, Aᴍ. Ass’ɴ. ᴏɴ Iɴᴛᴇʟʟ. ᴀɴᴅ Dᴇᴠᴇʟᴏᴘᴍᴇɴᴛᴀʟ Dɪsᴀʙɪʟɪᴛɪᴇs (Feb. 9, 2026), https://www.aaidd.org/intellectual-disability/definition [https://perma.cc/L466-TZC9].

^[17] Defining Criteria for Intellectual Disability, supra note 16; Atkins, 536 U.S. at 318.

^[18] In Hall, the cutoff score was 70. Hall v. Florida, 572 U.S. 701, 712 (2014).

^[19] Id. at 724.

^[20] Id. at 712-14.

^[21] Id. at 724.

^[22] Aʀᴋ. Cᴏᴅᴇ Aɴɴ. § 5-4-618(a)(2) (West 2025).

^[23] See Rankin v. State, 948 S.W.2d 397, 403-04 (Ark. 1997) (defendant was not entitled to the rebuttable presumption as his first IQ score was a 66 and deemed to be borderline intelligent after receiving a 72 on his second IQ test).

^[24] Oᴋʟᴀ. Sᴛᴀᴛ. Aɴɴ. tit. 21, § 701.10b(C) (West 2019).

^[25] Id. (“However, in no event shall a defendant who has received an intelligence quotient of seventy six (76) or above on any individually administered, scientifically recognized, standardized intelligence quotient test administered by a licensed psychiatrist or psychologist, be considered intellectually disabled and thus, shall not be subject to any proceedings under this section.”).

^[26] S.D. Cᴏᴅɪғɪᴇᴅ Lᴀᴡs § 23A-27A-26.2 (2018) (“An intelligence quotient exceeding seventy on a reliable standardized measure of intelligence is presumptive evidence that the defendant does not have significant subaverage general intellectual functioning.”).

^[27] What is Intellectual Disability?, supra note 5; Defining Criteria for Intellectual Disability, supra note 16.

^[28] Aʀɪᴢ. Rᴇᴠ. Sᴛᴀᴛ. Aɴɴ. § 13-753(G) (2011).

^[29] Gᴀ. Cᴏᴅᴇ Aɴɴ. § 17-7-131(c)(1)(C) (West 2025); Hayley Bedard, Georgia Senate Passes Bill Lowering Legal Standard for Intellectual Disability for Capital Defendants; Sends Bill to Governor’s Desk, Dᴇᴀᴛʜ Pᴇɴᴀʟᴛʏ Iɴғᴏ. Cᴛʀ. (May 14, 2025), https://deathpenaltyinfo.org/georgia-senate-passes-bill-lowering-legal-standard-for-intellectual-disability-for-capital-defendants-sends-bill-to-governors-desk [https://perma.cc/QBL7-ZF2T]; Contra Young v. State, 860 S.E.2d 746, 776 (2021) ([W]e hold that the standard of proof for intellectual disability claims presently chosen by Georgia’s General Assembly is not unconstitutional.”).

^[30] Brief for Respondent at 4, 10, Hamm v. Smith, No. 24-872, 2025 WL 2697129 (U.S. 2025).

^[31] Id. at 16.

^[32] See generally id.

^[33] Id. at 4.

^[34] Atkins v. Virginia, 536 U.S. 304, 321 (2002).

^[35] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 232 (2022).

^[36] Bejamin Zablotsky, et al., Diagnosed Developmental Disabilities in Children Aged 3-17 Years: United States, 2019-2021, Cᴛʀ. ғᴏʀ Dɪsᴇᴀsᴇ Cᴏɴᴛʀᴏʟ ᴀɴᴅ Pʀᴇᴠᴇɴᴛɪᴏɴ, Nᴀᴛ’ʟ Cᴛʀ. ғᴏʀ Hᴇᴀʟᴛʜ Sᴛᴀᴛs. (July 2023),  https://www.cdc.gov/nchs/products/databriefs/db473.htm[https://perma.cc/YWL3-DGTJ].

^[37] DPIC Analysis – Intellectually Disabled Defendants of Color, Foreign Nationals, Disproportionately Subject to the Death Penalty,  Dᴇᴀᴛʜ Pᴇɴᴀʟᴛʏ Iɴғᴏ. Cᴛʀ. (Mar. 14, 2025), https://deathpenaltyinfo.org/dpic-analysis-intellectually-disabled-defendants-of-color-foreign-nationals-disproportionately-subject-to-the-death-penalty [https://perma.cc/DW43-9DCE].

^[38] See e.g. Ann E. Marimow & Casey Parks, Tennessee Can Ban Gender Transition care for Minors, Supreme Court Says, Wᴀsʜ. Pᴏsᴛ (June 18, 2025), https://www.washingtonpost.com/politics/2025/06/18/supreme-court-transgender-transition-care-tennessee/ [https://perma.cc/YWL3-DGTJ]; United States v. Skrmetti, 605 U.S. 495 (2025).