After Missouri set his March 17 execution date in January, Clayton’s attorneys petitioned the courts for a competency hearing, hoping to establish his intellectual disability and prevent his execution. The Supreme Court has ruled that inmates have a due-process right to a mental competency hearing once their execution date is set. At these hearings, inmates can present evidence and testimony to demonstrate their incapacity for execution to a neutral fact-finder.

The decision by the Missouri Supreme Court denied Clayton the chance to have such a hearing. Four of the seven judges ruled that Clayton did not meet the “substantial threshold showing,” established to prevent frivolous claims from unnecessarily slowing down the system. If inmates do not meet this cursory level, they can’t seek a full review and its potential for relief. Clayton’s lawyers argued that the obvious brain injury and testimony from three psychiatrists who examined him easily meet this cursory procedural hurdle.

The Missouri Supreme Court disagreed. The majority’s ruling extensively reviewed Clayton’s legal and medical history, disputed expert psychologists’ credibility, attacked their conclusions about his mental capabilities, and weighed Clayton’s past competency arguments during his trial and sentencing phase. In their petition to the U.S. Supreme Court on Monday, Clayton’s lawyers argued “the Missouri Supreme Court…essentially required Clayton to prove his incompetency in order to obtain a hearing on his incompetency.”

Three dissenters, led by Judge Laura Stith, accused the majority of “putting the cart before the horse” by denying the competency hearing. She criticized the use of Clayton’s trial competency, reminding her colleagues that “the issue here is not whether Mr. Clayton was sufficiently competent to assist in his defense or to be found guilty when he was convicted in 1996 [but] whether Mr. Clayton is sufficiently competent today to be executed.” Stith noted that neither a jury nor a Missouri court had considered Clayton’s most recent IQ score of 71, nor had they evaluated the psychiatrists’ opinions after his trial.

Clayton’s IQ score evokes last term’s ruling Hall v. Florida, in which the U.S. Supreme Court struck down Florida’s strict IQ limit of 70 or below for executions after the state denied a competency hearing to an inmate with an IQ of 71. In Hall, the Court required states to consider other factors when assessing mental competency, including the margin of error in IQ tests. Judge Stith emphatically suggested her colleagues’ decision violated the Supreme Court’s ruling and, by extension, the Constitution.

Here, as in Hall, Cecil Clayton most recently has posted an IQ score of 71. The majority does not deny that if Clayton had a score of 66, or some other score below 70, he would be entitled to a hearing as to his intellectual disability. But, because his score is 71, it says he does not. This is exactly what the Supreme Court in Hall disallowed! (Emphasis original)

Even if Clayton gets a hearing, though, there’s no guarantee of its result. Although the U.S. Supreme Court forbade executions of people with intellectual disabilities in its 2002 ruling in Atkins v. Virginia, the justices left the task of defining “intellectual disability” to the states. Missouri’s death-penalty statute requires that an inmate’s intellectual disability be “manifested and documented before eighteen years of age.” Clayton was 32 years old when the sawmill injury destroyed part of his brain.