Federal Appeals Court To Georgia: Go Ahead And Execute An Intellectually Disabled Man

Warren Lee Hill

The Constitution forbids executing intellectually disabled people. As the Supreme Court explained in Atkins v. Virginia, using an unfortunate and antiquated term, “death is not a suitable punishment for a mentally retarded criminal.” Moreover, Georgia death row inmate Warren Lee Hill is intellectually. disabled. At least, that’s what all seven mental health professionals who evaluated Hill have said about him. Yet, thanks to a federal law enacted in large part for the purpose of making it easier for states to kill people, a federal appeals court held yesterday that Hill may be executed.

Courts previously deemed Hill’s death sentence valid based on the testimony of several experts who claimed he was not, in fact, intellectually disabled. Yet, as Judge Rosemary Barkett explains in a dissenting opinion, “all three experts who previously testified for the state of Georgia in 2000 that Hill did not meet the criteria for mental retardation have recently come forward and said they made a grievous mistake. They explained that their earlier conclusions were unreliable and that it is now their professional opinion that Hill is mentally retarded.” So Hill’s death sentence is rooted in unreliable evidence that has since been overcome by new information, and he asked the United States Court of Appeals for the Eleventh Circuit to overturn the death sentence that mentally health experts now unanimously agree is unconstitutional.

Except that there’s one big problem, a 1996 law known as the Antiterrorism and Effective Death Penalty Act (AEDPA) generally does not allow what are known as a “second or successive habeas corpus application,” meaning that a prisoner typically gets one chance to challenge their conviction or sentence in federal court, and that’s it. Prior to when the witnesses against him recanted their testimony, Hill sought a federal court order invalidating his death sentence on the grounds that he is intellectually disabled, and lost. And, while AEDPA does contain an exception for newly discovered information establishing a prisoner’s innocence, this exception does not allow a guilty person to challenge an unconstitutionally excessive sentence based on new evidence.

As Andrew Cohen explains, there are some aspects of the court’s analysis that are highly doubtful, even if the court ultimately reads AEDPA correctly to say that it more important to prevent someone from challenging their death sentence twice than it is to halt unconstitutional executions. Cohen also points to what may be the most stunning statement in the court’s majority opinion:

If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony. And, as this case illustrates, opinion testimony can be changed with great ease (indeed, even without seeing Hill in 13 years, administering any new tests, or reviewing new documents, three witnesses pivoted their positions 180 degrees). Moreover, there is no reason to limit the change in evidence theory to changes in testimony of previous witnesses. New witnesses could be rounded up, and every new witness would transform the same old claim into a brand new one (citations omitted by me).

The first sentence of this passage is simply breathtaking. Imagine, the court demands, how terrible the world would be if death sentences could be overruled just because the facts supporting those sentences turn out to be false!

At the end of the day, we can have a justice system that favors truth, or we can have a justice system that favors finality. AEDPA forces us to choose the later.