Warren Lee Hill was found by a court in 2002 to be intellectually disabled. He has scored below or close to the standard diagnostic threshold on tests of mental capability. Yet despite the Supreme Court’s ruling that executing people with limited cognitive capacity is unconstitutional, Hill will be executed next week unless a clemency board intervenes:
The Georgia State Board of Pardons and Paroles was due to hear a clemency appeal on behalf of the prisoner, Warren Hill, on Friday and has the power to commute his death penalty to life without parole.
But should the five-member board decide to dismiss his plea, Hill will be executed by lethal injection at 7pm on Wednesday at the Georgia Diagnostic and Classification Prison in Jackson in a move that could pit Georgia against the clear will of the supreme court, the highest judicial panel in the nation.
“We are heading into a constitutional crisis,” Hill’s lawyer, Brian Kammer, said. “The supreme court banned executions of mentally retarded prisoners, but here we are in Georgia about to execute a man who is mentally retarded.“
Georgia can do this as a consequence of a quirk in the law. Georgia is the only state that requires defense attorneys to meet a “beyond a reasonable doubt” test to prove their client is disabled. Many other death penalty states use a less stringent “preponderance of the evidence” test, which was employed in the 2002 holding in Hill’s favor. However, according to Ken Levine, who teaches law at Emory University, Georgia’s standard places a near-impossible burden on defense attorneys:
“Beyond a reasonable doubt can never be met if you’re simply not sure which side is unequivocally telling the truth and which side is not,” said Levine, who has no connection to the Hill case. “The issue with Georgia setting its mental health standard as high as it’s set is that it requires such a high level of certainty that even scientists will rarely reach.”
Though the Supreme Court declined to hear Hill’s challenge to the Georgia law this year, his lawyers are trying one last appeal to the high court. This is not the only recent case in which someone with mental difficulties has been ill-treated by existing death penalty law. Perhaps that’s part of why the death penalty is becoming increasingly unpopular and uncommon.