Today, Georgia is scheduled to execute a man diagnosed as intellectually disabled despite laws forbidding such actions, that is unless the U.S. Supreme Court steps in to stop it from happening. In 2002, the Supreme Court ruled in Atkins v. Virginia that it is a violation of the Eighth Amendment to execute a mentally retarded person. The court reasoned that such persons “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct” and often cannot assist in their defense. Accordingly, executing a mentally retarded person is cruel and unusual punishment forbidden by the Constitution.
Warren Hill has been serving a life sentence since 1990 for murdering his girlfriend when he killed fellow inmate John Handspike in a Georgia prison, beating him to death with a nail-studded board. Although they testified against Hill, several state medical examiners later admitted that their testimony was wrong and that Hill meets the clinical criteria for mental retardation. According to one state expert, Hill has an IQ of only 70.
First, because Hill was tried in Georgia, he was required to prove his mental retardation beyond a reasonable doubt. Georgia is the only state to hold defendants to that high burden. In nearly every other state, if a defendant is more likely than not mentally retarded, he or she may not be executed.
Clinical experts have explained that Georgia’s burden is virtually impossible to meet, especially for the vast majority of mentally retarded persons who are “mildly mentally retarded.” Such persons may be able to read and write, or obtain a driver’s license, yet still qualify as mentally retarded under the clinical definition. To a jury and even many judges, however, such abilities can make it difficult to find mental retardation “beyond a reasonable doubt.”
Moreover, a state can almost always find an expert to question the diagnosis — even if that expert’s review is cursory and countered by numerous experts testifying for the defendant. That is what happened in Hill’s case. One of the state’s experts later admitted that he was inexperienced at the time he examined Hill, and only spent an hour with him before reaching his opinion. Although it was later rescinded, the expert’s testimony, weak as it was, created reasonable doubt. And Hill’s case is not unique. Although experts have diagnosed dozens of prisoners on Georgia’s death row as mentally retarded, only one has ever met Georgia’s burden of proof.
Second, Hill is set to be executed despite overwhelming and unanimous evidence that his execution is unconstitutional because of a law passed by Congress in 1996 that severely limits the rights of criminal defendants. That law, the Antiterrorism and Effective Death Penalty Act prohibits prisoners from filing more than one habeas petition challenging violation of their constitutional rights, even in cases where they have an indisputable claim for relief.
If the US Supreme Court does not step in, Hill is scheduled to be killed with a single injection of the sedative pentobarbital at 7pm today. This would make it his second time he’s been sent to the death chamber in just five months. In February he came within 30 minutes of execution before the procedure was stayed.