WASHINGTON, D.C. — The U.S. Supreme Court issued two significant decisions in May 2026 involving jury discrimination and intellectual disability in death penalty cases, allowing a jury discrimination claim to proceed while preserving protections for people with intellectual disabilities, according to an article by the Death Penalty Information Center.
The court ruled in favor of Terry Pitchford, allowing his jury discrimination claim to proceed. In the same month, the court “separately dismissed an Alabama case” that “preserves a lower court finding that Joseph Clifton Smith has intellectual disability and cannot be executed.”
“At the same time however,” the article points out, “the Court vacated a lower court stay and allowed the execution of Edward Busby to proceed in Texas despite expert findings that he too had intellectual disability—drawing a searing dissent from several justices.”
In the 2019 decision in Flowers v. Mississippi, the court recognized “egregious racial discrimination” in the process by which prosecutor Doug Evans selected juries. Terry Pitchford’s attorney argued that the strikes were unconstitutionally based on race, citing Batson v. Kentucky (1986).
Batson v. Kentucky established a framework for jury discrimination claims built on three steps:
- The defense objects that a peremptory strike was based on race.
- The prosecutor offers a “race-neutral” explanation for the strike.
- The defense may rebut that reason as merely a pretext. The trial court then decides whether the reason was pretextual in light of all the evidence, including the historical jury selection practices of the prosecutor and the prosecutor’s office.
Over the course of six trials, “Mr. Evans used peremptory strikes to remove 41 of 42 Black potential jurors. The defendant in that case, Curtis Flowers, was later exonerated from death row.”
“The Flowers decision followed a classic Batson analysis: the Court found that Mr. Evans violated the Constitution through his ‘relentless, determined effort’ to remove Black potential jurors,” the article states.
“By contrast, Mr. Pitchford’s case focused not on the merits of the Batson claim, but on the procedural question of whether his attorney had waived that claim by failing to complete the third step of the framework.”
After the defense raised an objection under Batson and the trial court agreed “that she had made a preliminary showing of race-based strikes,” Evans provided the reasoning behind his strikes in accordance with step two.
“One Black potential juror, he said, had returned 15 minutes late to court after a break; two had brothers convicted of violent crimes; and another, like Mr. Pitchford, was a young unmarried father.”
The trial judge found these instances to be race-neutral but immediately proceeded to examine Evans’ peremptory strikes.
“Mr. Pitchford’s attorney tried to raise the Batson issue again, but the trial judge twice cut her off,” the article states.
“I think you already made those, and they are clear in the record,” the judge said, adding that there was “no Batson violation.” According to the article, “Mr. Pitchford’s counsel was never given the opportunity to argue that Mr. Evans’ reasons for striking the jurors were pretextual, nor did the trial court consider or rule on that question.”
The Mississippi Supreme Court, joined by the 5th U.S. Circuit Court of Appeals, ruled that Pitchford had waived his Batson objections. That ruling was reversed by “a bipartisan majority of five justices” in a “succinct nine-page opinion” after the case reached the Supreme Court.
According to the article, “Justice Brett Kavanaugh wrote that ‘the Mississippi trial court never conducted the essential third step of the Batson inquiry’: the judge ‘did not afford Pitchford’s counsel a sufficient opportunity to rebut the prosecutor’s proffered race-neutral reasons for striking the four [B]lack jurors and never determined whether the prosecutor’s stated reasons were pretextual.’”
Kavanaugh was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
“The case now returns to the Fifth Circuit to reevaluate the district court’s ruling in light of the Supreme Court’s directives,” the article states.
“The focus on procedure obscured more troubling features of Mr. Pitchford’s case,” the article claims. Pitchford was 18 when a robbery involving a 16-year-old friend turned fatal. Although the Supreme Court has ruled that juveniles are not eligible for capital punishment, the state sought the death penalty for Pitchford.
In the 2024 case Hamm v. Smith, which was reviewed again in 2025 and argued before the court last December, the Supreme Court ultimately issued a summary decision.
The court had indicated that it might use the case “to rule on how judges should weigh multiple IQ scores when considering intellectual disability claims in capital cases.” Despite extensive briefing from stakeholders and scientific experts, the case reached what the article described as an “anticlimatic end” when the court dismissed it as “improvidently granted” on May 21.
“This outcome, colloquially known as ‘DIG,’ means that the lower court’s ruling is preserved, as if the Court never agreed to review it,” the article states.
“The dismissal is a clear victory for advocates and experts who worried that a decision in the case could weaken the legal protections for people with intellectual disability.”
DIG (dismissed as improvidently granted) rulings are relatively rare. The last such dismissal in a capital case occurred in 2008 and involved arguments that a person should be exempt from execution because of an intellectual disability.
“Further,” the article states, “Alabama had identified no legal disagreement between lower courts as to how to approach multiple IQ scores — those courts uniformly relied on the assessment of medical experts.” Justice Sotomayor’s concurrence was joined by Justice Jackson.
Because there is no established legal standard governing multiple IQ scores, the court is “not equipped to provide any meaningful guidance on how courts should assess multiple IQ scores,” according to Justice Sotomayor.
In a dissent joined by no other justice, “Justice Thomas argued that the Court’s decision in Atkins v. Virginia (2002) exempting people with intellectual disability from the death penalty should be overruled.”
Additionally, “He claimed that the Eighth Amendment’s prohibition on cruel and unusual punishment applies only to methods of execution, not the characteristics of the group or individual being punished.”
“The main dissent was written by Justice Alito, joined in full by Justice Thomas and in part by Chief Justice Roberts and Justice Gorsuch.”
The dissenters maintained that the court should have decided the case to “provide much-needed guidance to lower courts.” Justice Alito argued that the lower courts “relied on psychologically, statistically, and legally unsound analyses to conclude that Smith’s IQ is 70 or below.”
“He characterized the Eleventh Circuit’s approach as a ‘one-low-score rule’ despite the Eleventh Circuit clarifying in the earlier remand that it considered all Mr. Smith’s scores ‘holistic[ally]’ with adaptive functioning evidence.”
However, experts maintain that IQ testing “only provides one piece of the puzzle,” and that intellectual disability is often complex by its very nature. One factor involves “significant limitations that originated before age 22 in both intellectual functioning and ‘adaptive behaviors,’” which are defined as the “collection of conceptual, social, and practical skills that are learned and performed by people in their everyday lives.”
“Though Mr. Smith’s case won five votes that saved him from execution, the Court allowed the execution of Edward Busby to proceed just a week earlier despite state and defense experts agreeing that he had intellectual disability.”
Despite efforts by state prosecutors to find Busby ineligible for execution, “on May 14, Mr. Busby became the 600th person put to death in Texas in the modern era.”
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