Georgia may be about to execute a mentally disabled man in possible violation of the U.S. Constitution.
Unless the U.S. Supreme Court intervenes, the state of Georgia will execute a man that everyone agrees is mentally retarded. A state court determined that a decade ago. The execution would violate the U.S. Constitution if carried out, but apparently that standard is not good enough for the Peach State.
Warren Lee Hill, Jr., who has an I.Q. of 70, is scheduled to die by lethal injection on July 23. His original execution date of July 18 was postponed due to changes in the state's execution drug protocol. Georgia, which once used a three-drug cocktail, has opted for a single drug dosage of pentobarbital -- a sedative used to put down dogs and cats that has been banned for export by the European Union.
On July 18, Texas used pentobarbital to execute Yokamon Hearn. According to his defense, Hearn was a mentally impaired man who suffered mental impairments due to his mother's prenatal drinking and abuse from his parents.
In his order denying relief to Hill, Superior Court Judge Thomas H. Wilson wrote that Hill meets the criteria of mental retardation by a preponderance of the evidence. In Atkins v. Virginia, the Supreme Court mandated the states to protect people with mental retardation because there is a "special risk of wrongful execution" because of their disabilities.
Writing for the majority in Atkins, Justice Stevens opined that the mentally disabled should not be executed because it provides no deterrent effect, and that such offenders are not culpable to deserve such a form of retribution. He added that with reduced capacity, mentally retarded defendants face a risk of wrongful conviction. They are poor witnesses, may give less meaningful assistance to their lawyers, and their demeanor may give an impression that they lack remorse.
"Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," Stevens wrote. "Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants."
However, Georgia sees things differently. Georgia requires defendants to prove they have an intellectual disability beyond a reasonable doubt -- the strictest standard in the nation. And experts agree Georgia is an outlier, as the only state in the Union with such an unreasonably high burden of proof and an impossible standard to meet. Yet, the state judge believes that Hill does not meet Georgia's standard, and that Georgia's standard does not violate the U.S. Constitution.
Many have already spoken out on this case. Several jurors from the case said they would have sentenced Hill to life without parole if they had the option. Former President Jimmy Carter and Rosalyn Carter called for clemency, and the victim's family called for a commutation of his sentence. Mental health advocacy groups, including the Georgia Council on Developmental Disabilities, the Arc of Georgia and the American Association on Intellectual and Developmental Disabilities (AAIDD) have called for a stay of Hill's execution as well.
Further, the international community has voiced its opposition to the execution. Christof Heyns -- the UN special rapporteur on extrajudicial, summary or arbitrary executions -- said Hill's execution "would be a fatality in violation of international as well as domestic law."
Georgia has a history of problems in its application of the death penalty, often making big mistakes by playing fast and loose with justice. In 2005, the state of Georgia granted a posthumous pardon to Lena Baker. A black maid who was executed in 1945 for killing a white man she said enslaved and beat her, Baker was the only woman executed in Georgia's electric chair. Her last words were "What I done, I did in self-defense, or I would have been killed myself... I am ready to meet my God."
And last September -- despite strong indications of innocence, an international outcry and a petition of 1 million signatures -- Georgia sent a man named Troy Davis to his death. The execution of Troy Davis, despite the absence of a murder weapon, physical evidence or DNA linking him to the crime, placed the spotlight on Georgia and the injustices of the death penalty. This, in a state where five death row inmates have been exonerated.
And Georgia is in the spotlight once again, as it plans to execute Warren Hill, a mentally ill man. And as the state decides to go it alone -- flying in the face of the Constitution -- the attention it receives is an embarrassment.
David A. Love is the Executive Director of Witness to Innocence, a national nonprofit organization that empowers exonerated death row prisoners and their family members to become effective leaders in the movement to abolish the death penalty.