"Mentally retarded" inmate to be executed

Georgia will put a man with severe learning disabilities to death, despite SCOTUS ruling

By Natasha Lennard

Published February 18, 2013 3:00PM (EST)

Warren Hill
Warren Hill

On Tuesday at 7 p.m. in Georgia, Warren Hill is scheduled to be executed by the state. According to the Guardian, lawyers are "racing against the clock" to save the life of the 53-year-old man with severe learning disabilities.

As the Guardian noted, all medical specialists who have examined the death row inmate have now concluded that he is unfit to face the death penalty:

All medical specialists who have examined Hill now agree that he is "mentally retarded" – the designation of intellectual disability still widely used in the US – and should be protected under the supreme court ban. In an important break in the case, three forensic psychiatrists who had previously testified that Hill did not meet the legal criteria for "mental retardation", and was thus eligible for execution, have in recent days announced that they now believe their opinion was wrong.

All three doctors say that their original evaluation – given 12 years ago at a crucial stage in the case – was rushed and ill-conceived.

Georgia has the highest bar of all states of proof for "mental retardation" -- indeed an inmate must be shown "beyond reasonable doubt" -- a condition virtually impossible to meet.

Writing in the Huffington Post, Eric Jacobson, executive director of the Georgia Council on Developmental Disabilities, noted the dark irony that Georgia, the first state to enact a law protecting the mentally ill from the death penalty, has made mental illness nearly impossible to prove in death row cases:

Despite being the first state to protect citizens with intellectual disability from capital punishment and that nobody contests that Mr. Hill has an intellectual disability, he is still scheduled to be executed. Why? Because Georgia has the strictest standard in the nation for proving intellectual disability. State law requires that individuals prove they have intellectual disability "beyond a reasonable doubt," a powerful legal concept that does not translate into the way individuals are assessed to determine if they have a intellectual disability. So, while Georgia never contested Mr. Hill's intellectual disability or I.Q. of 70, he was not able to meet the burden of proof.

Hill was sentenced to death for killing a fellow prisoner, Joseph Handspike, in 1990 while he was already serving a life sentence for murdering his girlfriend, Myra Wright. Georgia's treatment of the inmate -- now on death row for 16 years -- recalls the state's imprisonment and execution of Troy Davis, who was put to death in 2011 after 20 years behind bars. Davis' case drew national outrage as seven of the nine trial witnesses whose original testimony had identified Davis as the murderer had since changed or recanted their previous testimony, but Davis was nonetheless denied clemency.

The Guardian noted that Hill's impending death by lethal injection "has so far failed to ignite the mass outrage that marked the Troy Davis killing," but that Georgia lawyer Brian Kammer, who has fought to keep Hill alive for the past 16 years, is pushing hard at the eleventh hour:

Kammer has filed two emergency petitions to attempt to stay Hill's execution on Tuesday. The first is with the Georgia courts that draws on the doctors' revised testimony to argue that the execution should be put on hold, supplemented by a request to the state's clemency board asking them to reconsidering pardoning Hill and commuting his sentence to life without parole.

This is a repeat of events last July when Hill came within 90 minutes of losing his life before the highest court in Georgia stepped in and ordered a stay.

The second petition is with the US supreme court and relates to its 2002 ruling, Atkins v Virginia, in which it decreed that putting to death a "mentally retarded" person was a violation of the eighth amendment of the US constitution that prohibits cruel and unusual punishment. The justices left it up to individual states to set their own definitions of "mental retardation", though they did specify that local procedures had to be "appropriate".

Kammer's petition to the supreme court focuses on the concept of "appropriate".

"That word indicates that states don't have unlimited latitude, they can't just do whatever they want."

Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

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