Earlier today, the Maryland senate voted 27-20 to repeal the death penalty in that state. The repeal bill, which is a top priority for Gov. Martin O’Malley (D), will now move on to the state house, where it appears likely to pass. The bill has 67 co-sponsors in the house, and only 71 are needed for it to pass.

This bill reflects a growing national trend away from the death penalty in states that are not Texas or a handful of other, mostly Southern states. As the Eighth Amendment to the Constitution forbids “cruel and unusual punishments,” Maryland’s bill also brings the death penalty one step closer to being declared unconstitutional, as the Constitution explicitly states that punishments that are increasingly “unusual” stand on increasingly weaker constitutional footing.

Attempts by Maryland Republicans to water down the state’s proposed death penalty repeal were defeated late Monday night. The Senate voted down 8 amendments to keep the death penalty in place for some people, including cop-killers and inmates who kill correctional officers while in prison. The repeal could get a full vote as early as today and head to the House of Delegates for debate next week.

Though Maryland has only executed 5 people since 1978, Republican lawmakers fought long into the evening to maintain exceptions to the repeal:

Republicans and Democrats offered heart-wrenching examples of murderers without remorse and officers who left behind widows and children. “But I’ve got to say, the death penalty was in place when those murders took place,” Raskin said. “It did not stop those murders.”

Other efforts to preserve Maryland’s already narrowly written death penalty law also failed as the discussion stretched late into the night. Senators unsuccessfully tried to carve out exemptions for contract killers, people who commit multiple murders, murders of children or murders committed during a kidnapping.

This is the second time Gov. Martin O’Malley (D) has pushed for repeal, after his first effort failed in 2007. Maryland would be the 18th state to repeal the death penalty.

Maryland already in effect invalidated the death penalty since a judge overturned the rules for execution procedures in 2006. Still, 5 inmates remain on death row, in a “politically forged purgatory” for almost 30 years.

Maryland is following a national trend away from the death penalty; last year, judges issued the lowest number of death sentences in 20 years, while executions have declined. Despite this progress, the US is still the only G7 country where it is legal to execute citizens.

Capital punishment has fallen out of favor with both Democrats and Republicans nationally, due to mounting evidence that innocent people have been sentenced to death, and the escalating costs of housing death row inmates and pursuing extended legal battles.

A bill to repeal the death penalty in Maryland cleared the state Senate Judicial Proceedings Committee last night. The bill, a major priority for Gov. Martin O’Malley (D-MD), is expected to pass the state senate, where 26 of the body’s 47 members have said they will support the bill.

If the bill also passes the state house, where it is expected to have an easier road than it did in the senate, Maryland will join a growing national trend away from executions. According to a 2011 study by the Death Penalty Information Center, thirty-two U.S. jurisdictions executed no one in the proceeding five years. Moreover, although the death penalty is still technically legal in most states, executions themselves are rare outside handful of mostly Southern states. More than one third of all executions occurred in Texas:

The increasing rarity of the death penalty has constitutional implications. The Eighth Amendment to the Constitution forbids “cruel and unusual punishments.” Thus, as the death penalty becomes more and more unusual — or, as the Supreme Court has put it, as it no longer comports with “evolving standards of decency that mark the progress of a maturing society” — it stands on weaker and weaker constitutional footing.

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.

Eleven years ago, the Supreme Court held in Atkins v. Virginia that “death is not a suitable punishment for a mentally retarded criminal.” Yet, despite the fact that a court determined death row inmate Warren Lee Hill to be intellectually disabled in 2002, Hill is scheduled for execution today in the state of Georgia.

Hill’s execution could take place despite the Supreme Court’s decision in Atkins because of an potential loophole in that opinion. Although Atkins forbids executions of the intellectually disabled, it also left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Georgia essentially decided to “enforce the constitutional restriction” on the execution of intellectually disabled inmates by creating a standard that makes it nearly impossible for an inmate to prove that they are constitutionally ineligible for execution.

The Supreme Court could still intervene to prevent Georgia from flouting Atkins. If a court does not intervene soon, then Hill is scheduled to be executed at 7pm today.

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.