Georgia Justice

April 30, 2013
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By William Fisher

In 2002 U.S. Supreme Court ruled 6-3 that executions of mentally retarded criminals are “cruel and unusual punishment,” violating the Eighth Amendment to the Constitution.

Some time in the very near future – as soon as a new execution date is established — Texas will execute Warren Hill, who is mentally retarded with an IQ OF 70.

How come? Texas find a back door somewhere?

Well, yes and no.

On April 22, the U.S. Court of Appeals for the Eleventh Circuit denied Warren Hill’s appeal to halt his execution based on new evidence of his intellectual infirmity.

The Court ruled that Hill’s claim of intellectual disability (mental retardation) was presented in an earlier petition and could not be presented again, despite the new evidence. The judges also held that, even if Hill’s claim is a new one, it only challenges his eligibility for the death penalty, not his underlying guilt, and is therefore improper in a second petition.

On April 22, a divided U.S. Court of Appeals for the Eleventh Circuit denied Warren Hill’s appeal to halt his execution based on new evidence of his intellectual disability.

The Court ruled that Hill’s claim of intellectual disability (mental retardation) was presented in an earlier petition and cannot be presented again, despite the new evidence.

Wha? “Presented in an earlier petition and cannot be presented again?” Did we hear correctly?

Yes, we did. And so did Appeals Judge Rosemary Barkett. In her dissenting opinion, she said, “There is no question that Georgia will be executing a mentally retarded man because all seven mental health experts who have ever evaluated Hill, both the state’s and Hill’s, now unanimously agree that he is mentally retarded.”

She also stated, “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness….

[The federal habeas statute] should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands.”

The state argues that the claims for habeas relief should be barred because Georgia law requires that any claims not made in the initial petition should be barred from review, and this is Hill’s third such request.

So Hill will be put to death because a court chose a gaggle of legal technicalities while ignoring the larger issues.

But, in a dissenting opinion, Judge Rosemary Barkett said, “There is no question that Georgia will be executing a mentally retarded man because all seven mental health experts who have ever evaluated Hill, both the state’s and Hill’s, now unanimously agree that he is mentally retarded.”

She also stated, “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness….

[The federal habeas statute] should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands.”

At the Supreme Court’s initial ruling, Justice John Paul Stevens wrote the opinion for SCOTUS. It was joined by Sandra Day O’Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

“We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty,” the Court said.

If one favored the death penalty, Darell Hill would be right up there among prime candidates. This cognitively challenged miscreant has committed some of the most heinous crimes we can recall. But if he couldn’t tell right from wrong, should he lose his life? The Appeals Court ruling doesn’t address the constitutionality of capital punishment in general.

The majority cited a growing national consensus on the issue since the high court ruled in 1989 that such executions may be unacceptable. In the past 13 years the number of states that do not allow the execution of mentally retarded death row prisoners has grown from two to 18.

“It is fair to say that a national consensus has developed against it,” Stevens wrote.

In a blistering dissent, Justice Antonin Scalia scoffed at what he called “the 47 percent consensus.” He said the 18 states represent less than half of the 38 states that permit capital punishment in any case.

“If one is to say as the court does today that ALL executions of the mentally retarded are so morally repugnant as to violate our national standards of decency, surely the consensus it points to must be one that has set its righteous face against ALL such executions,” Scalia wrote.

Chief Justice William H. Rehnquist and Justice Clarence Thomas joined Scalia in dissenting.

According to a report by The Associated Press, the three dissenting justices, the court’s most conservative members, telegraphed their views when they complained about reprieves the court majority had granted to two Texas inmates who claim they are retarded.

The most immediate effect of the ruling will be in the 20 states that allowed execution of the retarded up to now. Presumably, dozens or perhaps hundreds of inmates in those states will now argue that they are retarded, and that their sentences should be converted to life in prison.

The state also argues that the “new evidence” – the doctors’ statements – is not credible. These doctors met with Hill and reviewed extensive documentation in 2000, and they haven’t seen him since and didn’t have new information, the state argues. The judge agreed, writing that the new petition is procedurally barred and that the “new evidence” does not establish a miscarriage of justice.

This is an example of the level of technicalities being invoked by the State of Texas.

So unless the U.S. Supreme Court agrees to hear a further appeal of this legal nightmare – if the defendant decides to mount one — Texas will have its way with Warren Hill.

And this will accomplish what?

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William Fisher

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned…