On February 19, 2013, Georgia plans to execute Warren Hill, a man with an intellectual disability. Mr. Hill has exhausted his appeals. The Georgia State Board of Pardons and Paroles denied clemency and has declined to give Mr. Hill another audience.
The United States Supreme Court should intervene in this case to ensure that the protection they have granted for the "mentally retarded" against the death penalty is realized. If the court does not act, a man with an undisputed intellectual disability will be unconstitutionally put to death next week.
As the Executive Director of Georgia's Council on Developmental Disabilities, I have strongly advocated for state and federal legislation that protects our nation's most vulnerable citizens. Our organization, and those like us across the country have supported many laws, including those that protect people with intellectual disabilities from execution. This supports the position of the United States Supreme Court in its landmark 2002 Atkins v Virginia ruling, noting that people with intellectual disabilities are less culpable for their actions and are at greater risk for wrongful execution.
Nobody disputes that Warren Hill has an intellectual disability. As a boy growing up in Elberton, Ga., his teachers testified and standardized testing proved he was functioning academically far below his peers. He also demonstrated adaptive delays, in conceptual, social and practical skills. The Georgia judges reviewing the case agree that Mr. Hill is "mentally retarded" by a preponderance of the evidence. Even the Georgia Attorney General's office declined to dispute this finding in court.
This entire case is confusing to those who know the law and are advocates for people with intellectual disabilities. On the one hand, in 1988, Georgia was the first state in our nation to enact a law protecting people with intellectual disability from the death penalty. The state law prohibiting capital punishment for individuals with intellectual disabilities, followed widespread public outcry after the execution of Jerome Bowden, a man with an I.Q. score in the '60s.
On the other hand, 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.
Only Georgia's unique "reasonable doubt" burden of proof restrained the Georgia courts from effectuating the Supreme Court's command that people like Mr. Hill must be protected from wrongful execution.
Several of the jurors now say that the most appropriate sentence for Mr. Hill would have been life without parole, which was not an option at his trial and sentencing.
Additionally, the family of the victim in the case supports life without parole instead of death for Mr. Hill. In a sworn statement, a family member stated, "I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death."
The protections that exist under the law for people with intellectual disability are vitally important to our democracy. People with intellectual disability deserve to live as full citizens of this country and state, protected by laws designed to recognize our diversity and uphold our basic rights, despite our differences. We, in Georgia will continue to fight to bring our state into alignment with other states by working with policy makers to change the "beyond a reasonable doubt" standard. In the meantime, the United States Supreme Court must stop the execution of Warren Hill.
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