Death Row Disability Cases Are Questions of Morality, Not Science

Should doctors decide whom the state should put to death as punishment? That’s hardly a job described in the Hippocratic Oath, by which physicians pledge, “In every house where I come, I will enter only for the good of my patients.”

Yet physicians and psychologists have long played a central role, via their clinical assessments, in determining whether death row inmates with psychiatric illnesses are competent for execution. In 2002, the US Supreme Court expanded this role, holding that execution of “mentally retarded” inmates constitutes “cruel and unusual punishment,” prohibited by the Eighth Amendment.

Twelve years later, the Supreme Court issued additional guidance on the cognitive prerequisites for execution, invoking both IQ testing and individualized clinical assessment as approaches to diagnosing mental retardation, later renamed “intellectual disability.” This cast mental health professionals as arbiters of life and death, based on IQ scores and evaluation of patients’ abilities to communicate, make decisions, and care for themselves.

The Supreme Court made this role out to be simple. It proved to be anything but.

In scores of cases, psychologists and psychiatrists applied the convention that an IQ of 70 or below merited a diagnosis of intellectual disability. But what if an inmate took multiple IQ tests, with differing results? Was even one score above 70 a sentence of death? Or should a single score of 70 or less require that life be spared?

And what about error ranges, variously calculated? For example, should a score of 71, with a standard error or standard deviation (differing statistical concepts) of several points, spare a convict’s life? Or should a death sentence apply, especially if the inmate’s other scores are higher? Finally, what place should personalized clinical assessments have?

These questions became the stuff of life-and-death litigation, culminating in the justices’ 2024 decision to hear Hamm v. Smith, affording the chance to prescribe rules for handling multiple IQ scores and conflicting clinical assessments.

The case, argued last December, promised clarity—until it didn’t. Last month, the Supreme Court dismissed its writ of certiorar as improvidently granted, allowing the Eleventh Circuit’s reliance on the appellee’s lowest score—alongside an individualized clinical assessment—to stand.

The justices both preserved the life of a man sentenced to die and punted on an opportunity to clarify the handling of such cases. But clarity might reveal more than most judges may be comfortable with exposing. The 70-IQ cutoff for intellectual disability isn’t a line drawn by science; it’s a product of politics.

The IQ test itself was conceived more than 100 years ago based on the assumption, convenient for classroom placement, that children’s ability to learn could be captured in a single number. Specifying “100” as the score for average performance was and is a matter of convention, not scientific discovery. Rising population-wide performance on IQ tests over the past century has required upward adjustments in the performance levels needed for a score of 100 (or for any other score).

To identify children who might benefit from what’s now known as special education, professionals who diagnose cognitive dysfunction began in the 1950s to designate test-takers who scored below 85 as “mentally retarded.” But as confinement of children in custodial institutions grew—and as outrage over disproportionate representation of minority children in special education soared—pressure mounted to shrink the scope of the diagnosis.

Leading associations of mental health professionals responded accordingly in the 1970s, lowering the IQ ceiling for “mental retardation” to 70, thereby shrinking the fraction of Americans in the category from 15% to less than 3%.

Judicial adoption of 70 as a cutoff for sparing lives originated from this policy change. Alarm over disproportionate diagnoses in children from disadvantaged minority groups thus led, perversely, to executions of Americans who might have qualified for such a diagnosis in the past.

Courts incorporated psychologists’ and psychiatrists’ policy judgment, masked as science, into constitutional law. Science didn’t drive the decision to make a test score of 70 or below the measure of whether death is cruel and unusual punishment. And science can’t resolve the disputes that the justices shied from in Hamm: how to weigh varying IQ scores and personalized clinical assessments.

These disputes call for political and moral judgment of a profound sort—about who should and shouldn’t be put to death as punishment, and about who should decide.

That the Hippocratic Oath doesn’t designate doctors for this role needn’t preclude their having a say. Societies look to medical opinion on myriad moral questions, from the proper scope of personal responsibility (for criminal conduct, substance abuse, unhealthy eating, and more) to the balance between public health and personal freedom when pandemic disease looms.

But it misrepresents medicine and psychology to characterize their counsel on such questions as compelled by science.

In a dissent to the Supreme Court’s about-face on its grant of cert in Hamm—a dissent joined by Chief Justice John Roberts and two others—Justice Samuel Alito insisted that “psychometric literature” provides “objective” criteria for determining “true IQ” and thus deciding whom to spare a sentence of death.

Such miscasting of moral questions as matters of science doesn’t just obscure decision-makers’ moral role. It corrodes public trust in research by stoking suspicions that science is a smuggling route for political preferences. The lives lost and harms that loom from waning confidence in medical care and other research-driven endeavors should alarm us about the risks of allowing morality to cosplay as science.

The case is Hamm v. Smith, U.S., No. 24-872, cert dismissed as improvidently granted 5/21/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Dr. M. Gregg Bloche is a professor of health law, policy, and ethics at Georgetown Law.

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