High court may be last hope for 'mentally retarded' man
The case of Warren Lee Hill offers a test of the Supreme Court's ruling
in 2002 that the death penalty constitutes "cruel and unusual
punishment" for the mentally retarded.
WASHINGTON — Warren Lee Hill's crimes don't elicit many pleas for mercy, but it's his mental capacity, not his murderous past, that may give him one last shot at avoiding the death penalty.
Hill claims to be "mentally retarded" in the lingering terminology of the law, a phrase replaced by the more palatable "intellectually disabled" several years ago. The Supreme Court ruled in 2002 that people with "mental retardation" should not be subject to the death penalty. And yet, that is what Hill likely faces in Georgia — unless the high court intervenes.
The 52-year-old prisoner's case has galvanized the nation's disability community. The American Association of Intellectual and Developmental Disabilities filed a lengthy brief last week urging the court to stay Hill's execution, citing experts' determinations that he is, indeed, mildly "retarded."
However, Hill's petition is pending before Associate Justice Clarence Thomas, who dissented in the court's 2002 Atkins v. Virginia ruling that executions of mentally retarded criminals constituted "cruel and unusual punishment" prohibited by the 8th Amendment.
There isn't much dispute about Hill's crimes. He killed his girlfriend in 1986 by shooting her 11 times. He was serving a life sentence when he killed a fellow inmate in 1990 by bludgeoning him with a nail-spiked board. At trial, he did not claim mental retardation, and he was sentenced to death.
The dispute — and the attention the case has received — stems from Hill's intellectual capabilities. His lawyers say that his IQ is 70, just low enough to qualify as mildly mentally retarded, and that he functions at about a sixth-grade level.
The state puts his IQ at 77 and argues he does not qualify for special consideration. When Hill first sought to sidestep the death penalty based on his mental capacity in 1996, the state cited his employment history and military service and produced three experts who said he was not mentally retarded.
Georgia's first-in-the-nation law banning the execution of people with mental retardation included a provision that has made Hill's execution legal in the eyes of the state. It put the burden of proof on the defendant to prove "beyond a reasonable doubt" that he is retarded, something no other state does.
State courts ruled that Hill did not prove his case, based on contradictory evaluations from experts. Hill first was set to die a year ago, on July 18, 2012. It was delayed for five days, then until February, then until this week.
On Thursday morning, a county judge delayed his execution again, ruling that a state law that shields the identities of the pharmacies making the lethal drugs for death row inmates may be unconstitutional. The state immediately vowed to appeal.
The broader question is whether Hill can be judged mentally retarded. In 2000, state and defense experts differed on that question. Since then, the state's experts who said he was not have changed their minds.
Even so, under a 1996 federal law intended to speed up the lengthy death row appeals process, Hill cannot try again to avoid the death penalty in the lower courts. His only option is to go directly to the U.S. Supreme Court.
That court last ruled on the issue in Atkins, in a decision written by former associate justice John Paul Stevens. "Mentally retarded defendants in the aggregate face a special risk of wrongful execution," Stevens wrote, concluding, "Death is not a suitable punishment for a mentally retarded criminal."
Thomas signed on to the dissents of former chief justice William Rehnquist and Associate Justice Antonin Scalia — the latter arguing that mental retardation "can readily be feigned."
"Whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all," Scalia wrote.
Georgia officials contend they have followed all the rules during Hill's more-than-20-year judicial odyssey. Their brief to the Supreme Court questions the sudden "non-credible" affidavits of the three original experts.
"These experts had the same information in 2000 as they have today," Deputy Attorney General Beth Burton says in her brief to the Supreme Court. They examined Hill then; they did not re-examine him before switching sides.
However, the judge who dissented from the 11th U.S. Circuit of Appeals decision allowing the death sentence to stand takes the opposite view.
"The state of Georgia will execute a mentally retarded man when it carries out the execution of Warren Lee Hill," Judge Rosemary Barkett wrote. "A congressional act cannot be applied to trump Hill's constitutional right not to be executed."
That's the argument presented by Brian Kammer, executive director of the Georgia Resource Center, a non-profit law firm that provides free representation to indigent prisoners facing death sentences.
"This court is Mr. Hill's last resort," Kammer's brief states, because the federal district court, federal appeals court, state habeas court, Georgia Supreme Court and Georgia Board of Pardons and Paroles all have denied his applications. "In this case, there is no 'fail safe' available to prevent a miscarriage of justice."
Hill claims to be "mentally retarded" in the lingering terminology of the law, a phrase replaced by the more palatable "intellectually disabled" several years ago. The Supreme Court ruled in 2002 that people with "mental retardation" should not be subject to the death penalty. And yet, that is what Hill likely faces in Georgia — unless the high court intervenes.
The 52-year-old prisoner's case has galvanized the nation's disability community. The American Association of Intellectual and Developmental Disabilities filed a lengthy brief last week urging the court to stay Hill's execution, citing experts' determinations that he is, indeed, mildly "retarded."
However, Hill's petition is pending before Associate Justice Clarence Thomas, who dissented in the court's 2002 Atkins v. Virginia ruling that executions of mentally retarded criminals constituted "cruel and unusual punishment" prohibited by the 8th Amendment.
There isn't much dispute about Hill's crimes. He killed his girlfriend in 1986 by shooting her 11 times. He was serving a life sentence when he killed a fellow inmate in 1990 by bludgeoning him with a nail-spiked board. At trial, he did not claim mental retardation, and he was sentenced to death.
The dispute — and the attention the case has received — stems from Hill's intellectual capabilities. His lawyers say that his IQ is 70, just low enough to qualify as mildly mentally retarded, and that he functions at about a sixth-grade level.
The state puts his IQ at 77 and argues he does not qualify for special consideration. When Hill first sought to sidestep the death penalty based on his mental capacity in 1996, the state cited his employment history and military service and produced three experts who said he was not mentally retarded.
Georgia's first-in-the-nation law banning the execution of people with mental retardation included a provision that has made Hill's execution legal in the eyes of the state. It put the burden of proof on the defendant to prove "beyond a reasonable doubt" that he is retarded, something no other state does.
State courts ruled that Hill did not prove his case, based on contradictory evaluations from experts. Hill first was set to die a year ago, on July 18, 2012. It was delayed for five days, then until February, then until this week.
On Thursday morning, a county judge delayed his execution again, ruling that a state law that shields the identities of the pharmacies making the lethal drugs for death row inmates may be unconstitutional. The state immediately vowed to appeal.
The broader question is whether Hill can be judged mentally retarded. In 2000, state and defense experts differed on that question. Since then, the state's experts who said he was not have changed their minds.
Even so, under a 1996 federal law intended to speed up the lengthy death row appeals process, Hill cannot try again to avoid the death penalty in the lower courts. His only option is to go directly to the U.S. Supreme Court.
That court last ruled on the issue in Atkins, in a decision written by former associate justice John Paul Stevens. "Mentally retarded defendants in the aggregate face a special risk of wrongful execution," Stevens wrote, concluding, "Death is not a suitable punishment for a mentally retarded criminal."
Thomas signed on to the dissents of former chief justice William Rehnquist and Associate Justice Antonin Scalia — the latter arguing that mental retardation "can readily be feigned."
"Whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all," Scalia wrote.
Georgia officials contend they have followed all the rules during Hill's more-than-20-year judicial odyssey. Their brief to the Supreme Court questions the sudden "non-credible" affidavits of the three original experts.
"These experts had the same information in 2000 as they have today," Deputy Attorney General Beth Burton says in her brief to the Supreme Court. They examined Hill then; they did not re-examine him before switching sides.
However, the judge who dissented from the 11th U.S. Circuit of Appeals decision allowing the death sentence to stand takes the opposite view.
"The state of Georgia will execute a mentally retarded man when it carries out the execution of Warren Lee Hill," Judge Rosemary Barkett wrote. "A congressional act cannot be applied to trump Hill's constitutional right not to be executed."
That's the argument presented by Brian Kammer, executive director of the Georgia Resource Center, a non-profit law firm that provides free representation to indigent prisoners facing death sentences.
"This court is Mr. Hill's last resort," Kammer's brief states, because the federal district court, federal appeals court, state habeas court, Georgia Supreme Court and Georgia Board of Pardons and Paroles all have denied his applications. "In this case, there is no 'fail safe' available to prevent a miscarriage of justice."
Courtesy: USA Today
