Despite having an IQ of only 65, Jerome Bowden chose his last words carefully: "I hope this thing that's happening to me will put some light on this thing that's wrong." Two years after he was executed by electric chair in Georgia in 1986, his wish came true when the state Legislature made the Peach Tree State the first in the nation to outlaw the execution of "mentally retarded" convicts. But 27 years and one month later, the state is poised to execute another man who almost everyone agrees suffers from extreme mental challenges.
In February, Warren Hill came within 30 minutes of being put to death before a federal appellate court delayed his execution until it could consider his claim of "mental retardation" (the term used by the state). This week, the state set a new execution date for July 15, even though it's waiting to hear from the U.S. Supreme Court and lacks the drug it uses for lethal injections.
"All experts who have evaluated Warren Hill agree: he is mentally retarded. Mr. Hill’s execution would therefore be a grotesque miscarriage of justice and render the Eighth Amendment a mere paper tiger," Hill's attorney Brian Kammer said.
In 2002, the Supreme Court ruled the execution of "mentally retarded" convicts unconstitutional, on grounds that it violated Eighth Amendment protections against cruel and unusual punishment. But it left it up to the states to determine the standards. In addition to being the first, Georgia is an outlier in that it's the only state that requires inmates to prove the condition beyond a reasonable doubt.
Hill has been given a death date twice and both times it's been postponed over questions of mental faculties. Last year, a Georgia judge affirmed a 2002 state court ruling that Hill has an IQ of 70, the generally accepted cutoff for retardation, but found that he did not meet Georgia's "beyond a reasonable doubt" standard.
In February, the Eleventh Circuit Court of Appeals postponed his scheduled execution, but a panel later ruled 2-1 that a federal anti-terrorism and death penalty law prevented them from ruling his favor.
In previous hearings, four expert witnesses called by the defense testified that Hill satisfied all of the elements of the clinical mental retardation. Three experts called by the state said he was faking it. All three of those witnesses have since recanted, pointing to both process issues and new research on retardation. "The reversal by all three government witnesses, who are now in agreement with the four defense expert witnesses, is highly unusual, if not unique," an amicus brief submitted by prominent mental health practitioners notes.
But since Georgia's law is so strict, Hill's only hope is for the Supreme Court to intervene and to move the case to federal court. "This case presents the extraordinary circumstance where an individual who is ineligible for a capital sentence is about to be executed. Mr. Hill has no recourse left but to beg the nation's highest court to intervene, and we trust and hope that the U.S. Supreme Court will hear his plea," Kammer said. The defense is preparing to file its motion to the high court now and will likely file it early next week.
Two years ago, Georgia's execution of Troy Davis led to an international outcry due to serious doubts about his guilt. Hill's case has likewise received attention, including a plea for clemency from Georgia native Jimmy Carter and the American Association on Intellectual and Developmental Disabilities.
On Monday, Barry Friedman and Dahlia Lithwick wrote a much-discussed column lamenting that the progressive movement has abandoned key issues. While the column was controversial for seemingly ignoring high-profile fights on choice and other issues, there's no question Friedman and Lithwick are right about capital punishment. And Hill's case seems like a good place to start.
And progressives -- and everyone else -- should care because all the arguments in favor of the death penalty collapse under scrutiny. Does the death penalty deter crime? There's no evidence to support the notion that it does. Last year, the National Research Council evaluated more than three decades of empirical research on the subject and concluded that it was all "fundamentally flawed" and inconclusive on whether "capital punishment decreases, increases, or has no effect on homicide rates."
What we do know is that it's up to 10 times more expensive to put someone to death than to keep them in prison for life, thanks to the exorbitant legal fees required for unusually complicated capital cases.
We also know that since 1973, large numbers have been exonerated. And those are just the ones who were acquitted or had charges dismissed by the prosecution -- there are countless more we may never know about.
We also know that since 1983, more than 60 people with mental illness or retardation have been executed in the United States.
And we know that African-Americans are disproportionately sentenced to death.
Meanwhile, it's becoming almost impossible to escape from prison. Escapes fell 95 percent between 1981 and 2001, and have continued to fall since, undermining another pro-death penalty argument.
All that's left is an emotional argument for vengeance on behalf of the victim. So it should speak volumes that the family of the woman Hill killed does not wish to see him executed, specifically citing his mental health issues.
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