Hamm v. Smith · ¶85

When it came to applying Atkins to Smith, the Alabama courts had no trouble recognizing that he did not satisfy the first requirement and therefore is not mentally retarded. The Court of Criminal Appeals explained that, by 2008, Smith had scored 75, 74, and 72 on three IQ tests. Smith v. State, 71 So. 3d 12, 19–20 (2008). Though his lowest score suggested that Smith's true IQ “could be . . . as low as 69” taking account of the error range for that score, it could also be “as high as 75.” Id., at 19. Smith asked the court “to apply that margin of error to conclude that . . . he is mentally retarded.” Id., at 20. But the court rejected that argument, which would require “expanding the definition of mentally retarded” to include people whose true IQ is likely above 70. Ibid.

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