Amicus Curiae Brief — John Q. Hamm, Commissioner, Alabama Department of Corrections, Petitioner v. Joseph Clifton Smith

Supreme Court briefAug 11, 2025

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Text

No. 24-872

In the Supreme Court of the United States

__________

JOHN Q. HAMM, COMMISSIONER,

ALABAMA DEPARTMENT OF CORRECTIONS,

Petitioner,

JOSEPH CLIFTON SMITH,

Respondent.

____________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

__________

DANIEL Z. EPSTEIN

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

daniel.epstein@aflegal.org

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities ................................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 3

The APAs are driven by ideology—not science.

........................................................................... 3

A. The APAs’ views about the death penalty

are not oriented toward science. ................. 5

B. The APAs’ other positions confirm their

ideological orientation. ................................ 9

II. The APAs’ approaches to diagnoses are

scientifically dubious. ..................................... 14

A. The DSM is infected by ideology, not

unanimous, and not science as generally

understood. ................................................ 15

B. The APAs have disagreed about how to

diagnose intellectual disability. ................ 19

C. There is no plausible consensus against

Alabama’s approach to multiple IQ scores.

.................................................................... 25

III. States should not be required to follow the

APAs’ latest positions. .................................... 29

A. In no other area of criminal law is state

authority over public policy confined by

interest group positions............................. 29

B. Forcing the States to follow the latest

interest group positions would be

impracticable. ............................................ 32

Conclusion.................................................................. 34

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Atkins v. Virginia,

536 U.S. 304 (2002) ........................ 25, 27, 29, 31, 32

Clark v. Arizona,

548 U.S. 735 (2006) ................................................ 31

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .................................................. 3

Drope v. Missouri,

420 U.S. 162 (1975) ................................................ 30

Ex parte Mays,

686 S.W.3d 745 (Tex. Crim. App. 2024) .... 26, 28, 32

Glossip v. Gross,

576 U.S. 863 (2015) .............................................. 5, 9

Gregg v. Georgia,

428 U.S. 153 (1976) .................................................. 5

Hall v. Florida,

572 U.S. 701 (2014) .......................... 4, 20, 27, 29, 33

Kansas v. Hendricks,

521 U.S. 346 (1997) ................................................ 29

Leland v. Oregon,

343 U.S. 790 (1952) ................................................ 31

Moore v. Texas,

581 U.S. 1 (2017) ...................... 12, 21, 23, 28, 32, 33

Panetti v. Quarterman,

551 U.S. 930 (2007) ................................................ 31

United States v. Hardy,

762 F. Supp. 2d 849 (E.D. La. 2010) ..................... 27

United States v. Skrmetti,

145 S. Ct. 1816 (2025) .......................................... 3, 4

United States v. Wilson,

170 F. Supp. 3d 347 (E.D.N.Y. 2016) .................... 27

OTHER AUTHORITIES

A. Frances, DSM-5 Is a Guide, Not a Bible—Simply

Ignore Its 10 Worst Changes, Psychiatric Times

(Dec. 5, 2012),

https://perma.cc/QC2F-3NDW ................... 16, 17, 18

A. Frances, Is DSM-5-TR Worth Buying?, Psychiatric

Times (Mar. 23, 2022),

https://perma.cc/SBS3-NBZ8 ................................. 24

AAIDD, AAIDD Opposes a Proposed Revision to the

DSM-5’s Entry for Intellectual Disability (July 29,

2019), https://perma.cc/2MRR-AQFL .............. 21, 22

AAIDD, AAIDD Strategic Plan 2024–2025 (July 29,

2024), https://perma.cc/4CFX-P475 ....................... 13

AAIDD, Anti-Racism: Position of AAIDD (Dec. 9,

2020), https://perma.cc/H29A-TX3G ..................... 14

AAIDD, Criminal Justice System: Joint Position

Statement of AAIDD and The Arc (2014),

https://perma.cc/66K2-WNUH................................. 8

AAIDD, Intellectual Disability (12th ed. 2021) .. 23, 25

AAIDD, Intellectual Disability: Definition,

Classification, and Systems of Supports

(11th ed. 2009) ..................................... 21, 22, 23, 33

AAIDD, Letter Regarding DSM-5 Draft Diagnostic

Criteria for “Intellectual Developmental Disorder”

(May 16, 2012), https://perma.cc/E5EV-C37E ...... 33

AAIDD, X (Jun. 26, 2018),

https://x.com/_aaidd/status/1011644183021580289

................................................................................ 14

American Psychiatric Association, A Statement on the

Supreme Court Decision (June 18, 2025),

https://perma.cc/NL2J-JFXC ................................. 13

American Psychiatric Association, APA Apologizes for

Its Support of Racism in Psychiatry (Jan. 18, 2021),

https://perma.cc/9K5M-H38F ................................ 11

American Psychiatric Association, APA Statement on

Gender Dysphoria and Military Readiness (Feb. 28,

2025), https://perma.cc/6W4W-K7K8 .................... 13

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders

(4th ed. 1999) ............................................. 16, 19, 20

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders

(5th ed. 2013) .. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,

26, 30, 33

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders, Fifth

Edition, Text Revision (2022) ........ 23, 24, 26, 30, 33

American Psychiatric Association, Intellectual

Development Disorder (Intellectual Disability),

https://perma.cc/JL9M-XHZ5 ................................ 24

American Psychiatric Association, One-Third of

Americans Worry About Climate Change Weekly

(June 18, 2025), https://perma.cc/N58L-EB8J ...... 13

American Psychiatric Association, Position Statement

on Issues Pertaining to Capital Sentencing and the

Death Penalty (July 2020),

https://perma.cc/LK4Z-8PCQ................................... 7

American Psychological Association, APA Resolution

on the Imposition of Death as a Penalty for Persons

Aged 18 Through 20, Also Known As the Late

Adolescent Class (Aug. 2022),

https://perma.cc/G6ET-LYC6 .......................... 6, 7, 8

American Psychological Association, APA Should

Stand Up Against the Death Penalty, Monitor on

Psychology (Oct. 2013),

https://perma.cc/W4ST-WN6K ................................ 6

American Psychological Association, The Death

Penalty in the United States (Aug. 2001),

https://perma.cc/564S-KZEU ................................... 5

Anti-Defamation League, ADL and AEN Urge the

American Psychological Association to Address

Antisemitism (May 30, 2025),

https://perma.cc/2YMF-AGB2 ............................... 11

Brief Amicus Curiae of the Criminal Justice Legal

Foundation in Support of Respondent, Moore v.

Texas, No. 15-797, 2016 WL 5116850

(U.S. Sept. 13, 2016) ........................................ 19, 32

Brief for American Psychological Association et al. as

Amici Curiae, Roper v. Simmons, No. 03-633, 2004

WL 1636447 (U.S. July 19, 2004) ............................ 6

vii

Brief for American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, Madison v.

Alabama, No. 17-7505, 2018 WL 2427451

(U.S. May 29, 2018) ................................................. 9

Brief for American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, Panetti v.

Quarterman, No. 06-6407, 2007 WL 579235

(U.S. Feb. 21, 2007).................................................. 9

Brief for Family Research Council as Amicus Curiae,

Chiles v. Salazar, No. 24-539, 2025 WL 1698827

(U.S. June 12, 2025)............................... 4, 10, 11, 13

Brief for Family Research Council as Amicus Curiae,

United States v. Skrmetti, No. 23-477,

2024 WL 4594889 (U.S. Oct. 15, 2024) ................... 4

Brief of Alabama as Amicus Curiae, United States v.

Skrmetti, No. 23-477, 2024 WL 4525181

(U.S. Oct. 15, 2024) .................................................. 4

Brief of American Association on Intellectual and

Developmental Disabilities, et al. as Amici Curiae

in Support of Petitioner, Hall v. Florida, No. 1210882, 2013 WL 6827753 (U.S. Dec. 23, 2013) ....... 9

Brief of American Association on Intellectual and

Developmental Disabilities, et al. as Amici Curiae

in Support of Petitioner, Moore v. Texas, No. 15797, 2016 WL 4151447 (U.S. Aug. 4, 2016) ............ 9

Brief of American Psychiatric Association et al. as

Amici Curiae, United States v. Skrmetti, No. 23477, 2024 WL 4135277 (U.S. Sept. 3, 2024)............ 8

Brief of American Psychological Association et al. as

Amici Curiae, United States v. Skrmetti, No. 23477, 2024 WL 4101400 (U.S. Sept. 3, 2024)............ 7

viii

Brief of American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, Hall v.

Florida, No. 12-10882, 2013 WL 6805688

(U.S. Dec. 23, 2013)...................................... 9, 26, 31

Brief of American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, McCarver v.

North Carolina, No. 00-8727, 2001 WL 648606

(U.S. June 8, 2001)................................................... 8

Brief of American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, Moore v.

Texas, No. 15-797, 2016 WL 4151451

(U.S. Aug. 4, 2016) ................................. 9, 24, 28, 31

Brief of American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, Moore v.

Texas, No. 18-443, 2018 WL 5876923

(U.S. Nov. 8, 2018) ................................................... 9

British Psychological Society, Response to the

American Psychiatric Association: DSM-5

Development (June 2011),

https://perma.cc/KTZ4-EEER ................................ 19

C. Jones, The Façade of Medical Consensus: How

Medical Associations Prioritize Politics Over

Science, 2025 Harv. J. L. & Pub. Pol’y Per Curiam

1 ................................................................................ 8

C. Lane, The NIMH Withdraws Support for DSM-5,

Psychology Today (May 4, 2013),

https://perma.cc/V5V6-43FQ ................................. 19

C. Perkes, Psychiatrists Considering Change to

Intellectual Disability Criteria, Disability Scoop

(Aug. 12, 2019),

https://perma.cc/456U-T69T ............................ 22, 24

D. Lorandos et al., Litigators Handbook of Forensic

Medicine, Psychiatry and Psychology (2024) .. 15, 16

Historical Addendum to APA’s Apology to Black,

Indigenous and People of Color for Its Support of

Structural Racism in Psychiatry (Jan. 18, 2021),

https://perma.cc/CL7Q-YE2Z................................. 12

J.C. Wakefield, DSM-5, Psychiatric Epidemiology

and the False Positives Problem, 24(3) Epid. Pysch.

Sci. 188 (2015), https://perma.cc/AE24-E28E ....... 18

M. First, Paradigm Shifts and the Development of the

Diagnostic and Statistical Manual of Mental

Disorders: Past Experiences and Future

Aspirations, 55(11) Canadian J. Psychiatry (2010)

................................................................................ 17

M. Makary, Blind Spots: When Medicine Gets It

Wrong, and What It Means for Our Health

(2024) ........................................................................ 4

M. Tasse & M. Kim, Examining the Relationship

between Adaptive Behavior and Intelligence,

Behavior Sciences (Mar. 13, 2023),

https://perma.cc/YS2W-DTN7 ............................... 25

R. Uyeda, How LGBTQ+ Activists Got

“Homosexuality” Out of the DSM, JSTOR Daily

(May 26, 2021), https://perma.cc/7VVZ-KD36 ...... 12

S. Satel, American Psychological Association

Slammed for ‘Virulent’ Jew Hate, The Free Press

(Feb. 25, 2025), https://tinyurl.com/yeyrpct7 ........ 11

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States by ensuring due process and equal

protection for every American citizen and encouraging

understanding of the law and individual rights

guaranteed under the Constitution and laws of the

United States. As President Trump recently

explained, “politicians and judges who oppose capital

punishment have defied and subverted the laws of our

country,” “seek[ing] to thwart the execution of lawfully

imposed capital sentences and choos[ing] to enforce

their personal beliefs rather than the law.” Exec.

Order No. 14164 § 1, 90 Fed. Reg. 8463 (Jan. 20, 2025),

“These efforts to subvert and undermine capital

punishment defy the laws of our nation, make a

mockery of justice, and insult the victims of these

horrible crimes.” Ibid. Because AFL agrees that “laws

that authorize capital punishment” should be

“respected and faithfully implemented,” id. § 2, it has

a substantial interest in this case. *

* No counsel for a party authored this brief in whole or in part,

and no person other than amicus curiae, its members, or its

counsel monetarily contributed to it.

SUMMARY OF THE ARGUMENT

The decisions below are riddled with references to

publications of several medical interest groups. See,

e.g., Pet. 34a–35a, 45a–48a, 51a–52a, 55a, 75a, 80a.

Unlike in most areas of law, this Court’s Eighth

Amendment precedents consult these interest groups

and allow their positions to affect the constitutional

analysis. The Court should no longer defer to the

shifting and advocacy-oriented positions of these

interest groups, especially on questions like the one

here, where these groups have no apparent view about

how to consider multiple IQ tests.

The primary groups at issue are the American

Psychiatric Association, the American Psychological

Association, and the American Association on Intellectual and Developmental Disabilities (collectively, the

“APAs”). These groups are resolutely opposed to the

death penalty. They are entitled to that opposition,

but their moral qualms about the death penalty

should not supersede the continuing, broad support of

Americans for this penalty as punishment for the most

heinous crimes. At least when it comes to contentious

issues like the death penalty, the APAs’ positions stem

in large part from their ideological viewpoints, not any

objective science. There is no reason to think that this

ideological rot does not infect their publications,

including their diagnostic manuals.

Indeed, the APAs’ claims of expertise about their

diagnoses of intellectual disability are suspect. They

decide relevant issues based on the select views of

small committees, they disagree among themselves,

and they continually change their definitions. The

changes often appear to result from ideological

pressure or litigation strategy, not science. And these

groups appear to have taken no out-of-court position

with any detail about how to consider multiple IQ

scores. One wonders whether that is because, other

things equal, multiple IQ scores obviously increase

accuracy, potentially leading to more death penaltyeligible murderers—and limiting the ability of

purported “experts” to declare otherwise based on

some “holistic” review. Whatever the reason, no

possible medical “consensus” could rebut Alabama’s

approach to multiple IQ scores.

So especially on this issue—but also on Eighth

Amendment questions more generally—the Court

should not defer to whatever the APAs might say. How

to balance considerations of deterrence, retribution,

and culpability are for the People, and the APAs have

no relevant expertise to engage in this complex

balancing. The People, through their laws and juries,

are entitled to execute brutal murderers like

Respondent.

The Court should reverse.

ARGUMENT

I. The APAs are driven by ideology—not science.

This Court’s Eighth Amendment precedents are

permeated by an unusually rosy picture of medical

consensus. In most areas of law, this Court has

properly recognized that “[t]he views of selfproclaimed experts do not ‘shed light on the meaning

of the Constitution.’” United States v. Skrmetti, 145 S.

Ct. 1816, 1840 (2025) (Thomas, J., concurring)

(quoting Dobbs v. Jackson Women’s Health Org., 597

U.S. 215, 272–273 (2022)). Among other problems with

deferring to supposed expert consensus, that

consensus is often wrong—especially “[i]n politically

contentious debates over matters shrouded in

scientific uncertainty.” Id. at 1849; see id. at 1837

(majority opinion).

Errors may stem from ideology, self-interest,

ignorance, groupthink, or any combination of these

factors. And they are common in the medical field, just

like any other field. 1 Thus, the danger of relying on

purported medical consensus is that it may reflect

little more than underlying ideological commitments,

as medical interest groups release evidence-free

statements and reference manuals that fit their

desired narrative. Other amici have documented this

phenomenon in recent cases before the Court,

including about the American Psychological

Association. 2

Yet this Court’s Eighth Amendment precedents

have largely glossed over these problems. Instead,

they have suggested that constitutional determinations should be “informed by the medical community’s

diagnostic framework.” Hall v. Florida, 572 U.S. 701,

721 (2014); see, e.g., id. at 710, 711, 723 (deferring

repeatedly to “the medical community,” “medical

1 See M. Makary, Blind Spots: When Medicine Gets It Wrong, and

What It Means for Our Health (2024).

2 See, e.g., Brief for Family Research Council as Amicus Curiae

4–28, Chiles v. Salazar, No. 24-539, 2025 WL 1698827 (U.S. June

12, 2025) (“FRC Chiles Brief”); Brief for Family Research Council

as Amicus Curiae 6–28, Skrmetti, No. 23-477, 2024 WL 4594889

(U.S. Oct. 15, 2024); Brief of Alabama as Amicus Curiae,

Skrmetti, No. 23-477, 2024 WL 4525181 (U.S. Oct. 15, 2024).

experts,” and “established medical practice”). But

there is no reason to trust these interest groups when

it comes to questions about capital punishment.

A. The APAs’ views about the death

penalty are not oriented toward science.

For starters, these interest groups are vociferously

opposed to the death penalty based on their own moral

views. The American Psychological Association has

called on “each jurisdiction in the United States that

imposes capital punishment not to carry out the death

penalty” until supposed “deficiencies” have been

addressed

and

correction

“shown

through

psychological and other social science research.” 3 The

APA cherry-picked studies supposedly showing a lack

“deterrent

effect”—ignoring

the

inherent

deficiencies in that research and research showing the

opposite. See, e.g., Glossip v. Gross, 576 U.S. 863, 897

(2015) (Scalia, J., concurring); Gregg v. Georgia, 428

U.S. 153, 185 (1976) (plurality opinion).

The APA also ignored other reasons for the death

penalty, including that it expresses “the community’s

belief that certain crimes are themselves so grievous

an affront to humanity that the only adequate

response may be the penalty of death.” Id. at 184.

“This function” “is essential in an ordered society that

asks its citizens to rely on legal processes rather than

self-help to vindicate their wrongs.” Id. at 183; see also

Glossip, 576 U.S. at 932 (Breyer, J., dissenting)

(“Retribution is a valid penological goal.”).

3 American Psychological Association, The Death Penalty in the

United States (Aug. 2001), https://perma.cc/564S-KZEU.

A past APA president, Dr. Donald N. Bersoff, urged

“the abolition of the death penalty” as “the moral and

ethical thing to do.” 4 He claimed (without citation)

that “retribution is founded in the unscientific belief

that behavior is the result of free will.” 5 He said that

“any decently trained psychologist knows that

behavior is not so unfettered” and that “there are no

heroes and no villains.” 6

More recently, the APA voted 161 to 7 to pass a

resolution citing “inclusion” and “diversity” in

proclaiming it “morally abhorrent” to apply the death

penalty when the criminal was 18–20 years old. 7 The

APA invoked its prior amicus brief in Roper v.

Simmons, which said that adolescents have

“[d]evelopmentally immature decision-making, paralleled by immature neurological development.” 8 The

APA’s said this same “immaturity” applies until age

21, “especially in the key brain systems implicated in

a person’s capacity to evaluate behavioral options,

make rational decisions about behavior, meaningfully

consider the consequences of acting and not acting in

American Psychological Association, APA Should Stand Up

Against the Death Penalty, Monitor on Psychology (Oct. 2013),

https://perma.cc/W4ST-WN6K.

5 Ibid.

6 Ibid.

7 American Psychological Association, APA Resolution on the

Imposition of Death as a Penalty for Persons Aged 18 Through 20,

Also Known As the Late Adolescent Class (Aug. 2022),

https://perma.cc/G6ET-LYC6.

8 Brief for American Psychological Association et al. as Amici

Curiae 2, Roper v. Simmons, No. 03-633, 2004 WL 1636447 (U.S.

July 19, 2004).

a particular way,” and much else. 9 The APA also

fretted about the effect of the death penalty on “those

with nontraditional sexual orientations,” without

pointing to specific examples. 10

Likewise, the American Psychiatric Association in

2020 passed a “Position Statement on Issues

Pertaining on Capital Sentencing and the Death

Penalty” endorsing a “moratorium on capital

punishment in the United States.” 11

If it were not already clear that the two APAs’

stances and arguments about the death penalty are

driven by their view that execution is “morally

abhorrent in a developed society that is concerned

with equality,” 12 consider what they told this Court in

United States v. Skrmetti. There, the two APAs waved

away all concern about the ability of juveniles to

consent to permanently sterilizing sex hormones and

surgeries for transitioning purposes, reasoning that

adolescents can “ha[ve] the emotional and cognitive

maturity required to provide informed consent/

assent.” 13 Yet they tell us that even criminals who

9 APA Resolution, supra note 7, at 1–2.

10 Id. at 3.

11 American Psychiatric Association, Position Statement on Issues

Pertaining to Capital Sentencing and the Death Penalty (July

2020), https://perma.cc/LK4Z-8PCQ.

12 APA Resolution, supra note 7, at 4.

13 Brief of American Psychological Association et al. as Amici

Curiae 15, Skrmetti, No. 23-477, 2024 WL 4101400 (U.S. Sept. 3,

2024); see Brief of American Psychiatric Association et al. as

Amici Curiae 12, Skrmetti, No. 23-477, 2024 WL 4135277 (U.S.

were 20 when they committed murder cannot be

subject to capital punishment because they “possess a

lack of maturity” and cannot adequately “resist

outside pressures.” 14 The difference? The APAs

morally support transitioning children and morally

oppose executing murderers.

As for AAIDD, it insists that “individuals with

intellectual disability” “must” “be exempt from the

death penalty because existing case-by-case

determinations of competence to stand trial, criminal

responsibility, and mitigating factors at sentencing

have proved insufficient to protect the rights of

individuals with intellectual disability.” 15 It complains

of “unfair and inaccurate procedures” from States and

calls for them to be required to conform their

procedures to “the national standards”—by which

AAIDD means its own preferences. 16

Together, the APAs have filed many amicus briefs

before this Court addressing capital punishment. 17 In

Sept. 3, 2024); see generally C. Jones, The Façade of Medical

Consensus: How Medical Associations Prioritize Politics Over

Science, 2025 Harv. J. L. & Pub. Pol’y Per Curiam 1, 6–8.

14 APA Resolution, supra note 7, at 1–2.

15 AAIDD, Criminal Justice System: Joint Position Statement of

AAIDD and The Arc (2014), https://perma.cc/66K2-WNUH.

16 Ibid.

17 See, e.g., Brief of American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, McCarver v. North

Carolina, No. 00-8727, 2001 WL 648606 (U.S. June 8, 2001); Brief

of American Psychological Association, et al. as Amici Curiae in

Support of Petitioner, Hall, No. 12-10882, 2013 WL 6805688

no instance do they appear to have supported capital

punishment.

“Capital punishment presents moral questions

that philosophers, theologians, and statesmen have

grappled with for millennia.” Glossip, 576 U.S. at 899

(Scalia, J., concurring). While the APAs are entitled to

their moral opposition to the death penalty, no one

should pretend that their statements about the death

penalty stem from anything else—certainly not some

neutral scientific posture.

B. The APAs’ other positions confirm their

ideological orientation.

The APAs’ ideological orientation is confirmed by

their policies and actions outside the capital

punishment context. Starting with the American

Psychological Association, another recent amicus brief

(U.S. Dec. 23, 2013) (“Hall APA Brief”); Brief for American

Psychological Association, et al. as Amici Curiae in Support of

Petitioner, Madison v. Alabama, No. 17-7505, 2018 WL 2427451

(U.S. May 29, 2018); Brief of American Psychological Association,

et al. as Amici Curiae in Support of Petitioner, Moore v. Texas,

No. 15-797, 2016 WL 4151451 (U.S. Aug. 4, 2016) (“Moore APA

Brief”); Brief of American Psychological Association, et al. as

Amici Curiae in Support of Petitioner, Moore v. Texas, No. 18443, 2018 WL 5876923 (U.S. Nov. 8, 2018); Brief for American

Psychological Association, et al. as Amici Curiae in Support of

Petitioner, Panetti v. Quarterman, No. 06-6407, 2007 WL 579235

(U.S. Feb. 21, 2007); Brief of American Association on Intellectual

and Developmental Disabilities, et al. as Amici Curiae in Support

of Petitioner, Hall, No. 12-10882, 2013 WL 6827753 (U.S. Dec.

23, 2013); Brief of American Association on Intellectual and

Developmental Disabilities, et al. as Amici Curiae in Support of

Petitioner, Moore, No. 15-797, 2016 WL 4151447 (U.S. Aug. 4,

2016).

explained that the APA has a “heinous record” on

many issues and “continues to make pronouncements

dictated by ideology, not sound science.” 18 The APA

“regularly relies on far-left concepts that lack

empirical examination,” and its ideology also

influences “the reporting and execution of

psychological research in a top-down manner.” 19 It has

“largely moved beyond trying to report objective

scientific facts, taking on a primary role of advocating

for certain public policies” and “reveal[ing] an

especially lopsided shift toward advocacy.” 20 The

APA’s “advocacy goals and resulting statements are

typically a product of self-selected political inclinations rather than a representation of the perspectives

of the psychological community.” 21 The APA’s

“ideological bent infects its legal work too,” as the APA

“churns out amicus briefs that are outside its

supposed expertise or misrepresent science.” 22 The

group’s “eagerness to insert its ideological preferences

is far-reaching.” 23

The APA continues to garner controversy.

Recently, “[m]ore than 3,500 mental health

professionals have sent a letter to the [APA’s leaders]”

“rebuking them for allowing ‘virulent antisemitism’ to

18 FRC Chiles Brief 8, 10.

19 Id. at 11.

20 Id. at 13.

21 Ibid.

22 Ibid.

23 Ibid.

fester in their ranks.” 24 The letter revealed that

“Jewish APA members have been harassed,

marginalized, and silenced on APA community forums

[] for attempting to challenge antisemitic rhetoric or

correct misinformation.” 25 The Anti-Defamation

League and the Academic Engagement Network said

that they “are deeply alarmed by reports of the rising

tide of antisemitism within the American

Psychological Association,” and warned that the

medical group’s “credibility depends on its willingness

to confront this moment with integrity.” 26 These

allegations are unsurprising, given the APA’s

tendency to censor and silence dissenting voices. 27

Things are little better at the American Psychiatric

Association, which like the American Psychological

Association has gone on several apology tours seeking

forgiveness for its past mistakes, including an apology

to “Black, Indigenous, and People of Color for its

support of structural racism in psychiatry.” 28 Its

apology details how “late 20th century psychiatrists

commonly attributed their minority patients’

S. Satel, American Psychological Association Slammed for

‘Virulent’ Jew Hate, The Free Press (Feb. 25, 2025),

https://tinyurl.com/yeyrpct7.

25 Ibid.

26 Anti-Defamation League, ADL and AEN Urge the American

Psychological Association to Address Antisemitism (May 30,

2025), https://perma.cc/2YMF-AGB2.

27 See, e.g., FRC Chiles Brief 12–13, 30.

28 American Psychiatric Association, APA Apologizes for Its Support of Racism in Psychiatry (Jan. 18, 2021), https://perma.cc/

9K5M-H38F.

frustrations to schizophrenia, while categorizing

similar behaviors as ‘neuroticism’ in white patients.” 29

Much like the American Psychological Association,

the American Psychiatric Association is no stranger to

kowtowing to the whims of ideological activist groups

when deciding what the “medical consensus” is. Take

the APA’s Diagnostic and Statistical Manual of

Mental Disorders (“DSM”), repeatedly relied on as

near-gospel by this Court’s precedents. See, e.g., Moore

v. Texas, 581 U.S. 1, 20 (2017) (“Reflecting improved

understanding over time, current manuals offer the

best available description of how mental disorders are

expressed and can be recognized by trained

clinicians.” (cleaned up) (citing DSM)).

“LGBTQ+ activists achieved what was called the

‘greatest gay victory’ of the time: successfully pushing

members of the American Psychiatric Association [] to

remove the diagnosis of homosexuality from the

official classification of mental illnesses” in the

DSM. 30 Activists went “straight to the source” by

attending conferences hosted by the APA to press the

group to revise its scientific manual. 31 At least one

activist at a conference yelled at the APA’s members

to get “off of the couches and into the streets!” 32 The

29 Historical Addendum to APA’s Apology to Black, Indigenous

and People of Color for Its Support of Structural Racism in

Psychiatry (Jan. 18, 2021), https://perma.cc/CL7Q-YE2Z.

30 R. Uyeda, How LGBTQ+ Activists Got “Homosexuality” Out of

the DSM, JSTOR Daily (May 26, 2021), https://perma.cc/7VVZKD36.

31 Ibid.

32 Ibid.

activists demanded that the APA get in line, and the

medical group obliged.

Also like the American Psychological Association, 33

the American Psychiatric Association eagerly

comments on issues that are loosely tied—if at all—to

psychiatry. In recent months, the APA accused this

Court of “strip[ping] patients and families of the choice

to direct their own health care” following Skrmetti, 34

advocated for climate change efforts after an APAcommissioned poll found that over 40% of adults had

personally experienced effects on their mental health

due to climate change, 35 and opposed an executive

order about gender dysphoria and military service. 36

Last, AAIDD too is not shy that its first “major

objective” is to “[a]dvance progressive policies . . . that

result in social justice.” 37 It seeks “to influence policy,”

including by “[p]rovid[ing] information . . . to jurists

and others in the criminal justice system.” 38 And like

the two APAs, it does not limit its policy statements to

areas within its expertise. One recent statement

declared “that racism is at the forefront of th[e]

33 See FRC Chiles Brief 13–16.

34 American Psychiatric Association, A Statement on the Supreme

Court Decision (June 18, 2025), https://perma.cc/NL2J-JFXC.

35 American Psychiatric Association, One-Third of Americans

Worry About Climate Change Weekly (June 18, 2025),

https://perma.cc/N58L-EB8J.

36 American Psychiatric Association, APA Statement on Gender

Dysphoria and Military Readiness (Feb. 28, 2025),

https://perma.cc/6W4W-K7K8.

37 AAIDD, AAIDD Strategic Plan 2024–2025 (July 29, 2024),

https://perma.cc/4CFX-P475.

38 Ibid.

oppression” “that form[s] inequities for Black people in

our country,” with AAIDD pledging to support

“antiracism.” 39 Its conferences—which purport to be

scientific gatherings—have opened with a chorus

singing “We are an LGBT people, and we are pleading,

pleading for our lives.” 40

All this provides ample reason for the Court to

treat the APAs’ pronouncements—and any arguments

they make here—as it would the arguments of any

other interest group with ideological commitments.

The votes of a few dozen purported experts—most of

them categorically opposed to the death penalty—

should not set a constitutional standard that limits

how the People’s representatives punish crime.

II.

The APAs’ approaches to diagnoses are

scientifically dubious.

Though this Court has relied on the APAs’

diagnostic manuals in Eighth Amendment cases,

those manuals have a suspect scientific basis. They

are contradictory, subject to change without scientific

justification, and produced by small groups of

individuals with minimal empirical review.

AAIDD, Anti-Racism: Position of AAIDD (Dec. 9, 2020),

https://perma.cc/H29A-TX3G.

40 AAIDD, X (Jun. 26, 2018), https://x.com/_aaidd/status/

1011644183021580289.

A. The DSM is infected by ideology, not

unanimous, and not science as generally

understood.

As noted, this Court’s Eighth Amendment

precedents have placed heavy reliance on the

American Psychiatric Association’s DSM. The APA

“began the current classification system, the

Diagnostic and Statistical Manual (DSM) in 1952 in

order to create a single ‘classification that would be

acceptable to all members.’” 41 “Descriptions and

classifications were drawn from the consensus of

clinicians, and this method has remained through to

the present version—DSM-5.” 42

“Chief among the application problems with this

DSM system is that of inter-rater reliability because

the descriptions do not lend themselves to a single

interpretation.” 43 “[B]ecause similar symptoms of

distress manifest[] in many diagnostic categories,”

researchers have noted the danger that clinicians

“may be selectively perceiving and emphasizing only

those characteristics and attributes of their patients

which are relevant to their own preconceived system

of thought.” 44

Thus, “the essential difficulties” with the DSMs

“are diagnostic validity and reliability.” 45 The

“validity difficulty is that” the DSM lacks “a unifying

41 1 D. Lorandos et al., Litigators Handbook of Forensic Medicine,

Psychiatry and Psychology § 3:15 (2024).

42 Ibid.

43 Ibid.

44 Ibid.

45 Ibid.

theory to guide diagnostic decision-making.” 46 As for

reliability, “[t]here is no available evidence that the

procedures of the various DSMs have reduced the

subjective biases associated with the diagnostic work

of mental health professionals.” 47 Rather, diagnoses

“often reflect the ethnic- and social class prejudices of

diagnosticians and the social stereotypes they

associate with a particular disorder.” 48

The prior DSM, DSM-4, “clearly acknowledged its

limitations” for evidentiary purposes. 49 So “one would

suppose that when crafting the successor to the DSMIV,” addressing “the shortcomings in the classification

system would have been at the top of the list” for the

APA. 50

One “would be wrong.” 51 “[T]he DSM 5 had

abysmal results in its field trials” for reliability,

results that “were clearly predictable from the start.” 52

When the APA’s Board of Trustees approved the DSM5, Professor Allen Frances of Duke University,

Chairman of the DSM-4 Task Force, viewed it as the

“saddest moment in [his] 45-year career studying,

practicing, and teaching psychiatry.” 53 Calling the

DSM-5 “deeply flawed” and “containing many changes

46 Ibid.

47 Ibid.

48 Ibid.

49 Ibid.

50 Ibid.

51 Ibid.

52 Ibid.

53 A. Frances, DSM-5 Is a Guide, Not a Bible—Simply Ignore Its

10 Worst Changes, Psychiatric Times (Dec. 5, 2012),

https://perma.cc/QC2F-3NDW.

that seem clearly unsafe and scientifically unsound,”

Professor Frances advised clinicians, the press, and

the public to “be skeptical and don’t follow [the] DSM5 blindly down a road likely to lead to massive overdiagnosis and harmful over-medication.” 54

Even at its inception, the DSM-5 “got off to a bad

start and was never able to establish sure footing.” 55

“Its leaders initially articulated a premature and

unrealizable goal [] to produce a paradigm shift in

psychiatry,” 56 away from categorical diagnoses and

toward “dimensional measures.” 57 But little attention

was “paid to the methodological rigour and

comprehensiveness of the DSM-5 empirical review,” 58

and “[e]xcessive ambition combined with disorganized

execution led inevitably to many ill-conceived and

risky proposals.” 59

Though these ambitions were “vigorously

opposed,” the DSM-5 “has neither been able to selfcorrect nor willing to heed the advice of outsiders,” and

“has instead created a mostly closed shop–circling the

wagons and deaf to the repeated and widespread

warnings that it would lead to massive

54 Ibid.

55 Ibid.

56 Ibid.

57 Ibid.

57 M. First, Paradigm Shifts and the Development of the

Diagnostic and Statistical Manual of Mental Disorders: Past

Experiences and Future Aspirations, 55(11) Canadian J.

Psychiatry, 692, 693 (2010).

58 Id. at 697.

59 Frances, supra note 53.

misdiagnosis.” 60 In fact, as another academic pointed

out, the DSM-5’s “revision process suffered from lack

of an adequate public record of the rationale for

changes.” 61 Discussions among the manual’s Scientific

Review Committee, a group “formed in response to the

DSM-5 controversies to evaluate the strength of the

scientific evidence for each proposed change and

provide recommendations to the workgroups, [were]

kept strictly secret.” 62 This “needlessly secretive DSM5 mindset” was “antithetical to both the appearance

and reality of intellectual integrity.” 63

But perhaps the DSM-5’s “greatest problem, and

the target of the most vigorous and sustained

criticism, was its failure to take seriously the false

positives problem.” 64 “By expanding diagnosis beyond

plausible boundaries in ways inconsistent with DSM5’s own definition of disorder, DSM-5 threatened the

validity of psychiatric research . . . .” 65 “Except for

autism, all the DSM-5 changes loosen[ed] diagnosis

and threaten[ed] to turn [the] current diagnostic

inflation into diagnostic hyperinflation.” 66 The

concern was (and is) that “millions of people with

normal grief, gluttony, distractibility, worries,

reactions to stress, the temper tantrums of childhood,

60 Ibid.

J.C. Wakefield, DSM-5, Psychiatric Epidemiology and the

False Positives Problem, 24(3) Epid. Pysch. Sci. 188, 188 (2015),

https://perma.cc/AE24-E28E.

62 Id. at 189

63 Ibid.

64 Id. at 188.

65 Ibid.

66 Frances, supra note 53.

the forgetting of old age, and ‘behavioral addictions’

will soon be mislabeled as psychiatrically sick and

given inappropriate treatment.” 67

Other medical groups echoed this concern. The

National Institute of Mental Health, “the world’s

largest funding agency for research into mental

health,” withdrew its support for the DSM-5 before it

was even released. 68 It was concerned the manual’s

“diagnoses [were] based on a consensus about clusters

of clinical symptoms, not any objective laboratory

measure,” leading to its “weakness”: “its lack of

validity.” 69 Likewise, the British Psychology Society

criticized the DSM-5’s diagnoses as “clearly based

largely on social norms,” emphasizing that “[m]any

researchers have pointed out that [its] psychiatric

diagnoses are plagued by problems of reliability,

validity, prognostic value, and co-morbidity.” 70

B. The APAs have disagreed about how to

diagnose intellectual disability.

The DSM-5 affected the intellectual disability

diagnosis too. The DSM-4 required as the “essential

feature” of intellectual disability a “subaverage

67 Ibid.; see generally Brief Amicus Curiae of the Criminal Justice

Legal Foundation in Support of Respondent, Moore, No. 15-797,

2016 WL 5116850 (U.S. Sept. 13, 2016) (“Moore CJLF Brief”)

(making similar points).

68 C. Lane, The NIMH Withdraws Support for DSM-5, Psychology

Today (May 4, 2013), https://perma.cc/V5V6-43FQ.

69 Ibid.

70 British Psychological Society, Response to the American

Psychiatric Association: DSM-5 Development (June 2011),

https://perma.cc/KTZ4-EEER.

general intellectual functioning” “that is accompanied

by significant limitations” in the individual’s

“adaptive functioning.” 71 The DSM-5 took a different

approach, naming two “essential features”—

intellectual deficits and impairments in adaptive

functioning—and requiring that “the deficits in

adaptive functioning must be directly related to the

[individual’s] intellectual impairments.” 72 The

manual vaguely defined “adaptive functioning” as

“how well a person meets community standards of

personal independence and social responsibility, in

comparison to others of similar age and sociocultural

background.” 73 In other words, while the DSM-4

required only that an individual’s subaverage

intellectual functioning is accompanied by significant

limitations to their adaptive functioning, the DSM-5

required that one was a cause of the other.

The seemingly subtle change created an obvious

problem. This Court relied on the DSM-5 and the

“medical community” in defining intellectual

disability through three criteria: (1) “significantly

subaverage intellectual functioning”; (2) “deficits in

adaptive functioning”; and (3) onset of these deficits

during the developmental period.” Hall, 572 U.S. at

710 (citing DSM-5, at 33). The Court later said that

scientific consensus and “[t]he medical community’s

current standards” supply a necessary “constraint on

71 American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 39 (4th ed. 1999).

72 American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 37–38 (5th ed. 2013).

73 Id. at 37.

States’ leeway” in defining intellectual disability

under the Eighth Amendment. Moore, 581 U.S. at 20.

But there wasn’t a consensus. Besides the DSM-5,

this Court relied on the AAIDD 11th edition clinical

manual. 74 See Moore, 581 U.S. at 13, 20. But the

AAIDD-11 did not require “that adaptive deficits be

‘related’ to intellectual functioning,” while the DSM-5

“did include that requirement.” Id. at 24 (Roberts,

C.J., dissenting).

This lack of consensus among the manuals and

psychiatrists only intensified. On September 7, 2018—

after Hall and Moore—the AAIDD urged that the

DSM-5’s approach to adaptive functioning be “deleted”

from its diagnostic criteria. 75 The AAIDD said that the

DSM-5’s requirement was “neither possible for

clinicians to ascertain nor empirically supported.” 76

What’s more, the AAIDD observed that “problems

created by [the DSM-5’s] phrase were not merely a

theoretical concern, but that the practical impact of

this change to the diagnostic criteria could easily be

foreseen in . . . various legal issues in the criminal and

civil justice systems.” 77

The American Psychiatric Association offered “a

proposed revision” to the DSM-5 saying that “deficits

in adaptive functioning are a consequence of

74 AAIDD, Intellectual Disability: Definition, Classification, and

Systems of Supports (11th ed. 2009) (“AAIDD-11”).

75 AAIDD, AAIDD Opposes a Proposed Revision to the DSM-5’s

Entry for Intellectual Disability (July 29, 2019), https://perma.cc/

2MRR-AQFL.

76 Ibid.

77 Ibid.

intellectual deficits.” 78 The AAIDD still “strongly

oppose[d]” the suggested revision as “not supported by

empirical evidence,” arguing that the revision

“mistakenly asserts causation that puts a primacy in

diagnosis on IQ and creates internal inconsistency in

the criteria by anchoring both clinical elements on the

diagnosis in IQ.” 79 The AAIDD argued that “there is

no empirical evidence supporting the notion of a

causal link between intellectual functioning and

adaptive behavior.” 80 And the AAIDD said that the

DSM-5’s understanding “[r]epresent[ed] a significant

and dramatic departure from previous DSM manuals,

contradict[ed] current clinical and scientific

consensus, and [was] out of step with other diagnostic

systems (i.e., the World Health Organization’s ICD

and AAIDD).” 81

Nor was the back-and-forth between the medical

groups confined to the role of adaptive functioning. For

instance, the AAIDD-11 required intellectual

disability to “originate[] before age 18.” AAIDD-11, at

1. Meanwhile, the DSM-5 required onset of

intellectual and adaptive deficits during the (vaguely

defined) “developmental period.” DSM-5 at 33. And

the latest AAIDD manual, the 12th edition, moves

onset to the “developmental period” too, which “is

78 C. Perkes, Psychiatrists Considering Change to Intellectual

Disability Criteria, Disability Scoop (Aug. 12, 2019),

https://perma.cc/456U-T69T.

79 AAIDD Opposes, supra note 75.

80 Ibid.

81 Ibid.

defined operationally as before the individual attains

age 22.” 82

AAIDD’s own manual has caused disagreements

too. As Justices of this Court pointed out, the majority

opinion in Moore relied on “the AAIDD’s direction that

‘significant limitations in conceptual, social, or

practical adaptive skills [are] not outweighed by the

potential strengths in some adaptive skills.’” Moore,

581 U.S. at 31 (Roberts, C.J., dissenting) (citing

AAIDD-11, at 47). “Even assuming that all clinicians

would agree with this statement, there are a number

of ways it might be interpreted . . . .” Ibid. For

instance, this statement may mean “that strengths in

one of the three adaptive skill areas—conceptual,

social, and practical—should not cancel out deficits in

another; as meaning that strengths should not

outweigh deficits within the same skill area; or as

meaning that evidence of some ability to perform a

skill should not offset evidence of the inability to

perform that same skill.” Ibid. And “clinicians do, in

fact, disagree about what this direction means.” Ibid.

(collecting citations).

After Moore, the American Psychiatric Association

revised the DSM-5, issued as the DSM-5-TR. 83 The

DSM-5-TR was not immune from criticism, including

being called “destructive” and “compound[ing] the

AAIDD, Intellectual Disability 14 (12th ed. 2021) (“AAIDD12”).

83 American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders, Fifth Edition, Text Revision (2022)

(“DSM-5-TR”).

DSM-5’s colossal error[s].” 84 Like its predecessor, the

manual revised (and generally relaxed) diagnostic

criteria with little explanation.

Of special interest, the new revision deleted the

DSM-5’s controversial requirement that adaptative

functioning must be directly related to the individual’s

intellectual impairments. Compare DSM-5 at 38, with

DSM-5-TR at 42. The APA’s stated reason for the

revision was that the old phrase appeared to

“inadvertently” “change the diagnostic criteria for

Intellectual Disability to add a fourth criterion.” 85

But the “directly related” requirement wasn’t

inadvertent. Even when the APA was pressed by the

AAIDD and other groups to revise the DSM-5’s

criteria for adaptive functioning, the APA would only

say that “deficits in adaptive functioning are a

consequence of intellectual deficits.” 86 Time and again,

the APA was urged to reevaluate its criteria, but the

group would not budge. Even before this Court, the

medical group emphasized that “[t]he current

diagnostic criteria require a connection between the

deficits in intellectual functioning and adaptive

functioning.” 87

The APA’s dubious explanation for its change does

not show a new consensus of the roles and relationship

between adaptative behavior and intellectual

84 A. Frances, Is DSM-5-TR Worth Buying?, Psychiatric Times

(Mar. 23, 2022), https://perma.cc/SBS3-NBZ8.

American Psychiatric Association, Intellectual Development

Disorder (Intellectual Disability), https://perma.cc/JL9M-XHZ5.

86 Perkes, supra note 78.

87 Moore APA Brief 9.

impairment. Rather than show that the revision was

made in response to a newfound scientific consensus,

the APA simply labelled the prior definition as

“inadvertent.” Recent “[s]tudies examining the

correlation between the adaptive behavior and

intelligence

individuals

with

intellectual

disabilities” continue to report “varying results.” 88

Similarly, AAIDD-12—while claiming that it alone

provides “[t]he authoritative definition”—tries to

paper over all the past and present disagreements in

the field, implausibly claiming that all prior AAIDD

and DSM manuals have been “consisten[t]” because

“the APA has generally adopted, with some minor

adaptations, the AAIDD definition and diagnostic

criteria.” AAIDD-12, at 14, 17. As shown, however,

there was—and remains—no consensus in the

“medical community” about these issues.

C. There is no plausible consensus against

Alabama’s approach to multiple IQ

scores.

This disagreement among the medical community

matters to the question before the Court of whether

and how courts may consider the cumulative effect of

multiple IQ scores in assessing an Atkins claim. First,

there would little better indication that these groups

are driven by ideology rather than science if they were

to file an amicus brief in this case that glosses over the

indisputable (and obvious) fact that, other things

88 M. Tasse & M. Kim, Examining the Relationship between

Adaptive Behavior and Intelligence, Behavior Sciences 2 (Mar.

13, 2023), https://perma.cc/YS2W-DTN7.

equal, multiple IQ tests “provide a more accurate

estimate than each test alone.” Pet. 2.

Second, that apparently nothing in these groups’

manuals explores the question of multiple IQ scores in

any detail shows that the purported scientific

expertise of these groups has little to offer the Court

here. Whatever is said in any brief they file will not

even have the imprimatur of the (small) committees

that author the manuals or the (small) audiences that

vote on their policies. See Ex parte Mays, 686 S.W.3d

745, 751 n.3 (Tex. Crim. App. 2024) (Yeary, J.,

dissenting) (noting that these “manuals may not even

accurately reflect the consensus of the psychiatric

profession itself”). It will be generated for litigation

purposes and align with the groups’ ideological opposition to the death penalty.

Third, any claim of consensus will be illusory. The

two APAs previously told this Court that IQ test scores

are only “approximations of conceptual functioning.”89

They theorized that “[r]elying solely on an IQ score at

any level” is inadequate, and that “the appropriate

method of diagnosis in every case is a comprehensive

assessment of the individual’s adaptive . . . functioning.” 90 Yet the DSM-5 and AAIDD could not even

agree on the definition and role of adaptive

functioning. Nor did the DSM-5-TR adequately

explain the justification for its revision and whether

there is a new consensus on adaptive functioning.

89 Hall APA Brief 16.

90 Id. at 25 (emphasis added).

Fourth, elevating subjective opinions about

adaptive functioning above intellectual function as

evidenced by a string of IQ tests is suspect on a couple

levels. This Court has said that “diminished

intellectual functioning” “‘make[s] it less likely that a

defendant can process the information of the

possibility of execution as a penalty’ and therefore be

deterred from committing murders.” Hall, 572 U.S. at

737 (Alito, J., dissenting) (brackets omitted) (quoting

Atkins v. Virginia, 536 U.S. 304, 320 (2002)). Even

“[s]trong evidence of a deficit in adaptive behavior”

(ibid.) could not alone show diminished intellectual

functioning.

Plus, “adaptive behavior is a malleable factor

without ‘firm theoretical and empirical roots,’” and “its

measurement relies largely on subjective judgments”

based on memories from third parties. Ibid. “The

evaluation of a person’s adaptive functioning involves

significantly more subjective clinical judgment” “than

the assessment of IQ,” since adaptive functioning

determinations depend on “the selection of the tests

used to assess adaptive behavior, the persons selected

as informants, the conduct of the interviews, and the

ultimate interpretation of the tests’ results.” United

States v. Hardy, 762 F. Supp. 2d 849, 883 (E.D. La.

2010). These subjectivity problems are even worse “in

the Atkins context where” adaptive functioning

determinations “often are based on retrospective

recollections of an individual’s youth.” United States v.

Wilson, 170 F. Supp. 3d 347, 368 (E.D.N.Y. 2016).

“[A]s the need for clinical judgment increases, so does

the opportunity for disputes between clinicians”

(Hardy, 762 F. Supp. 2d at 883)—and for some

putative expert to opine that an individual has

adaptive

deficits

that

preclude

appropriate

punishment.

For instance, Respondent’s expert (and the district

court) relied on tidbits from other people, including

that Respondent in his 20s “wanted to fit in,” “[d]idn’t

seem to cook food,” “did not work consistently,” and

had “reckless behaviors.” Pet. 87a; see also Pet. Reply

4 (collecting similar tidbits). That these facts could

describe a substantial number of single men in their

20s only reinforces the subjectiveness of the adaptive

functioning inquiry—and how easily it can be

manipulated by those with some hostility toward the

death penalty. That the APAs would want to tilt the

inquiry toward this subjective determination aligns

with their ideological opposition to the death penalty.

Accord Mays, 686 S.W.3d at 750 n.1, 751 (Yeary, J.,

dissenting) (noting that “[t]he criteria for discerning a

diagnosis of intellectual disability” have become “less

rigorous” “with each successive manual”).

In sum, the APAs have told this Court that there is

scientific consensus about how to determine

intellectual disability. 91 But that has always been

suspect. The Court should not further “constitutionalize rules” based on a non-existent consensus by

ideological interest groups. Moore, 581 U.S. at 31

(Roberts, C.J., dissenting).

91 See, e.g., Moore APA Brief 7–8.

III. States should not be required to follow the

APAs’ latest positions.

Even when it has overly deferred to medical

interest groups, this Court has never obligated States

to adopt their changing (and contradictory)

understandings of intellectual disability. See, e.g.,

Hall, 572 U.S. at 721 (“[T]he views of medical

experts . . . do not dictate the Court’s decision.”).

Rather, the “clearest and most reliable objective

evidence” about what punishments may be cruel and

unusual “is the legislation enacted by the country’s

legislatures.” Atkins, 536 U.S. at 312. In no other area

of criminal law is such authority delegated, and doing

so would be impracticable and unworkable.

A. In no other area of criminal law is state

authority over public policy confined by

interest group positions.

In the Eighth Amendment context, the Court has

“traditionally left to legislators the task of defining

terms of a medical nature that have legal

significance.” Kansas v. Hendricks, 521 U.S. 346, 359

(1997). That is why “the States have, over the years,

developed numerous specialized terms to define

mental health concepts” even when those terms “do

not fit precisely with the definitions employed by the

medical community.” Ibid. For instance, the legal

definitions of “insanity” and “competency” “vary

substantially from their psychiatric counterparts.”

Ibid. Thus, legal definitions “need not mirror those

advanced by the medical profession.” Ibid.

That has been true across criminal law. Take a

defendant’s competency to stand trial. “It has long

been accepted that a person whose mental condition is

such that he lacks the capacity to understand the

nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his

defense may not be subjected to a trial.” Drope v.

Missouri, 420 U.S. 162, 171 (1975). The Court had

admitted “uncertainty of diagnosis in this field and the

tentativeness of professional judgment.” Id. at 176.

Yet the various DSMs do not contain a diagnosis that

would determine whether a defendant is legally

competent to stand trial.

In fact, the DSM-5 expressly disclaims the ability

to decide questions like this, explaining that there is

an “imperfect fit between the questions of ultimate

concern to the law and the information contained in a

clinical diagnosis.” DSM-5, at 25; see DSM-5-TR, at

29. It also warns that “[i]n most situations, the clinical

diagnosis of a DSM-5 mental disorder such as

intellectual disability . . . does not imply that an

individual with such a condition meets legal criteria

for the presence of a mental disorder or a specified

legal standard (e.g., . . . disability).” DSM-5, at 25; see

DSM-5-TR, at 29.

All this is unsurprising. While diagnostic manuals

like the DSM are generally concerned with diagnosing

patients to provide them appropriate treatments, the

legal system is mainly concerned with other issues,

like determining competency to ensure the

defendant’s “due process right to a fair trial.” Drope,

420 U.S. at 172. The medical and legal definitions

serve different purposes, notwithstanding the APAs’

continual suggestions in their amicus briefs to this

Court that their manuals’ definitions should frame—

if not dictate—the contours of the Eighth Amendment. 92 And medical diagnoses only go so far: for

instance, no “scientific analysis” could “possibly show

that a mildly [intellectually disabled] individual who

commits an exquisite torture-killing is ‘no more

culpable’ than the ‘average’ murderer in a holdupgone-wrong or a domestic dispute.” Atkins, 536 U.S. at

350 (Scalia, J., dissenting).

Diagnostic manuals also did not play a controlling

role when the Court upheld a narrow definition of the

insanity defense in Clark v. Arizona, 548 U.S. 735

(2006). There, the Court distinguished “medical

definitions [which are] devised to justify treatment”

from “legal [definitions which are] devised to excuse

from conventional criminal responsibility.” Id. at 752.

Likewise, in Leland v. Oregon, this Court explained

that the “choice of a test of legal sanity involves not

only scientific knowledge but questions of basic policy

as to the extent to which that knowledge should

determine criminal responsibility.” 343 U.S. 790, 801

(1952).

When the Court considered whether “the Eighth

Amendment permits the execution of a prisoner whose

mental illness deprives him of the mental capacity to

understand that he is being executed as a punishment

for a crime,” the Court did not base the inquiry on the

medical diagnosis finding that the defendant suffered

from severe delusions. Panetti v. Quarterman, 551

U.S. 930, 954 (2007) (cleaned up). Instead, the

relevant “legal inquiry concern[ed] whether these

92 See, e.g., Hall APA Brief 25; Moore APA Brief 26.

delusions can be said to render him incompetent.” Id.

at 956 (emphasis added). In effect, a defendant

meeting the diagnostic criteria for a psychotic disorder

warranted no more than the “beginning of doubt about

competence” Id. at 960. 93

Thus, a mental defense has not and should not be

restrictively bound to a clinical definition. And this

Court need not “abandon[] the usual mode of analysis

[it] has employed in Eighth Amendment cases.”

Moore, 581 U.S. at 21 (Roberts, C.J., dissenting).

“[J]udges, not clinicians, should determine the content

of the Eighth Amendment.” Id. at 22. That determination should look to “the workings of normal democratic

processes in the laboratories of the States,” not the

views of “private organizations speaking only for

themselves.” Atkins, 536 U.S. at 326 (Rehnquist, J.,

dissenting). “For this Court to uncritically adopt the

latest expression of the apparent consensus of [a small

slice of] the psychiatric community as to the

appropriate diagnostic criteria for [intellectual

disability], overinclusive though that expression may

be,” would “constitute[] an abdication of the Court’s

judicial role.” Mays, 686 S.W.3d at 751 n.3 (Yeary, J.,

dissenting).

B. Forcing the States to follow the latest

interest group positions would be

impracticable.

In Moore, this Court said that “current manuals

offer ‘the best available description of how mental

disorders are expressed and can be recognized by

93 See generally Moore CJLF Brief 7–10 (making similar points).

trained clinicians.’” 581 U.S. at 20 (quoting DSM-5, at

xli). As shown above, that claim is now dubious. The

DSM-5 has been widely criticized by scholars,

psychiatrists, and other medical groups. The same is

true for its successor. The DSM-5 and AAIDD-11

manuals could not even agree on a single “best

available description” of intellectual disability.

Indeed, the AAIDD warned the American Psychiatric

Association that “[h]aving the two most authoritative

manuals in the country defining ‘intellectual

disability’ using different terminology and different

definitions would create havoc . . . in the courts

(especially in death penalty cases).” 94

As for the DSM-5-TR, it failed to clarify whether

there is some newfound medical consensus on

adaptive functioning. It only called its predecessor’s

definition of adaptive functioning “inadvertent.” But

this Court had relied on that supposed “inadvertent”

term. See Hall, 572 U.S. at 712; Moore, 581 U.S. at 17.

The point is that requiring States to follow the

latest positions of (disagreeing) medical interest

groups leaves them in an impossible position. Surely

the 50 States are not forced to rewrite their laws

simply because an interest group backpedals on a

prior diagnostic criterion without pointing to new

evidence. Constitutional law should not be outsourced

to self-interested, ideological medical interest

groups—especially on so serious a matter as whether

94 AAIDD, Letter Regarding DSM-5 Draft Diagnostic Criteria for

“Intellectual Developmental Disorder” 2 (May 16, 2012),

https://perma.cc/E5EV-C37E.

the People may appropriately punish a convicted

murderer.

CONCLUSION

For these reasons, the Court should reverse.

Respectfully submitted,

DANIEL Z. EPSTEIN

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

daniel.epstein@aflegal.org

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

AUGUST 11, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.