Two Courts Spare Intellectually Disabled Man From Execution — For Now

Yesterday, less than one hour before he was scheduled to be executed and after he had accepted sedatives to reduce his suffering during his impending death sentence, a divided panel of the United States Court of Appeals for the Eleventh Circuit stayed the planned execution of Warren Lee Hill. Multiple mental health experts evaluated Hill and determined him to be “mentally retarded,” the legal term for intellectually disabled people who, under the Supreme Court’s decision in Atkins v. Virginia, cannot constitutionally be executed.

A Georgia state appeals court also issued a stay, although that decision was based on a challenge to Georgia’s lethal injection procedure and is unlikely to result in a permanent stay of execution.

So Hill’s life has momentarily been spared, but he is far from out of the woods. The order saving his life was written by moderate Judge Stanley Marcus and liberal Judge Rosemary Barkett, and while recent retirements and a couple of new Obama appointees mean that the Eleventh Circuit is no longer the bastion of conservatism it was just a few years ago, Marcus and Barkett are probably still to the left of this court’s center. As if to drive this point home, 18 of the 24 pages of opinions accompanying the court’s order are devoted to a dissent by Judge Frank Hull, the deeply conservative judge who co-authored a just-as-deeply erroneous opinion striking down the Affordable Care Act.

Hill also faces an uphill battle thanks to a 1996 law intended in no small part to make it easier for states to kill people. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), prisoners are typically not allowed to file what is known as a “second or successive habeas corpus application, ” meaning that someone convicted of a crime gets one attempt to seek relief from federal courts — and if they lose they are shut out forever. AEDPA does contain exceptions, including one for newly discovered information that could not have been previously discovered by a reasonable diligence, but it is unclear whether Hill can take advantage of this exception.

Hill points to affidavits from three state experts, all of whom testified that he is not intellectually disabled in 2000 — and all of whom have since recanted this testimony and claimed that he meets the legal criteria for “mental retardation” — as exactly the sort of new facts enabling him to raise a second claim. The problem he faces is that, while AEDPA sometimes permits new evidence to be considered if it shows that the prisoner is actually innocent of the crime they were convicted of, it is far less clear that new evidence can be admitted in Hill’s case. Hill does not claim that he is innocent. He claims that he has a mental disability that prohibits the state from executing him, and this may not be enough to penetrate AEDPA’s harsh rule.

So Hill is almost certainly intellectually disabled, and every mental health professional to evaluate him says as much. Moreover, the Supreme Court held in Atkins that it is unconstitutional to execute someone with Hill’s disability. Nevertheless, Hill remains likely to be executed in large part because of a federal law passed to prevent courts from considering whether it is unconstitutional to execute someone.