While a series of procedural rulings have delayed execution for Warren Lee Hill, he faces imminent capital punishment by the state of Georgia a week from tomorrow, in spite of a U.S. Supreme Court decision that says executing the severely mentally disabled is unconstitutional. Hill, who was deemed “mentally retarded” at trial (an unfortunate legal term), has exhausted his appeals, and only U.S. Supreme Court action can stop his execution this time.
Among those who have advocated for Hill’s clemency are several jurors from Hill’s trial, disability groups, and President Jimmy Carter. Even the victim’s family has submitted an affidavit stating that they prefer clemency.
In its ruling in Atkins v. Virginia, the high court held that executing individuals deemed “mentally retarded” violated the Eighth Amendment’s prohibition against cruel and unusual punishment because their disability “places them at special risk of wrongful execution.” Wrongful convictions are already rampant in the U.S. criminal justice system, and the unique irreversibility of capital punishment is one of the reasons why the remedy is becoming increasingly unpopular and uncommon.
In spite of the Supreme Court’s holding, a harsh procedural technicality has allowed the state to skirt existing Supreme Court precedent. While all other states require a finding that the defendant is meets the mental disability criteria by a “preponderance of the evidence”or some other moderate standard of evidence, Georgia imposes the “beyond a reasonable doubt” standard — the equivalent of legal certainty. Psychologists have attested that this is a standard that is almost impossible to attain when it comes to mental disability.
Unfortunately, the statute that permits this standard survived legal challenge in a narrow 4-3 ruling. In her dissent in that case, Georgia Supreme Court Justice Leah Sears articulates the clear inconsistency of this statute with the prohibition on executing the severely mentally disabled:
Despite the federal ban on executing the mentally retarded, Georgia’s statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The State may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded.
In its decision in Atkins, the U.S. Supreme Court said, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” It is now up to the justices to make clear that, by imposing an unattainable standard for proving “mental retardation,” Georgia is not enforcing this “constitutional restriction” at all.