WASHINGTON — The Supreme Court on Monday refused to consider a Georgia prisoner’s plea for mercy based on his claim of mental incapacity.
The justices denied a petition to avoid the death penalty from attorneys for Warren Lee Hill, a twice-convicted murderer serving on Georgia’s death row, even though medical experts have determined that he is intellectually disabled. The high court ruled a decade ago that people with mental retardation cannot be executed.
A separate appeal of Hill’s sentence remains pending in Georgia Supreme Court.
The 52-year-old prisoner’s case had galvanized the nation’s disability community. The American Association of Intellectual and Developmental Disabilities filed a lengthy brief urging the court to block Hill’s execution, citing experts’ determinations that he is mildly retarded.
Hill’s petition had been pending before Associate Justice Clarence Thomas, who dissented in the court’s 2002 Atkins v. Virginia ruling that executions of mentally retarded criminals constituted “cruel and unusual punishment” prohibited by the 8th Amendment.
“We are gravely disappointed that the U.S. Supreme Court has failed to act to ensure the protection for persons with intellectual disability that was promised by the court’s 2002 ruling in Atkins v. Virginia,” said Brian Kammer, Hill’s attorney. “It is tragic that our highest court has failed to enforce its own command that persons with mental retardation are categorically ineligible for the death penalty.”.
There isn’t much dispute about Hill’s crimes. He killed his girlfriend in 1986 by shooting her 11 times. He was serving a life sentence when he killed a fellow inmate in 1990 by bludgeoning him with a nail-spiked board. He did not claim an intellectual disability at the time, and he was sentenced to death.
The dispute — and the attention the case has received in the disability community — stems from Hill’s mental capabilities. His lawyers say that his IQ is 70, just low enough to qualify as mildly mentally retarded, and that he functions at about a 6th-grade level.
Georgia puts his IQ at 77 and argues he does not qualify for special consideration. When Hill first sought to sidestep the death penalty based on his mental capacity in 1996, the state cited his employment history and military service and produced three experts who said he was not mentally retarded.
Georgia’s first-in-the-nation law banning the execution of people with mental retardation included a provision that has made Hill’s execution legal in the eyes of the state. It puts the burden of proof on the defendant to prove “beyond a reasonable doubt” that he is retarded, something no other state does.
State courts ruled that Hill did not prove his case, based on contradictory evaluations from experts. Hill first was set to die a year ago, on July 18, 2012. It was delayed for five days, then until February, then until July. Then a county judge delayed his execution again, ruling that a state law that shields the identities of the pharmacies making the lethal drugs for death row inmates may be unconstitutional.
The broader question is whether Hill can be judged mentally retarded. In 2000, state and defense experts differed on that question. Since then, the state’s experts who said he was not have changed their minds.
Even so, under a 1996 federal law intended to speed up the lengthy death row appeals process, Hill could not try again to avoid the death penalty in the lower courts. His only option was to go directly to the Supreme Court.
That court last ruled on the issue in Atkins, a decision written by former associate justice John Paul Stevens. “Mentally retarded defendants in the aggregate face a special risk of wrongful execution,” Stevens wrote, concluding, “Death is not a suitable punishment for a mentally retarded criminal.”.
Thomas signed on to the dissents of former chief justice William Rehnquist and Associate Justice Antonin Scalia — the latter arguing that mental retardation “can readily be feigned.”.
“Whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all,” Scalia wrote.
Georgia officials contended they followed all the rules during Hill’s more-than-20-year judicial odyssey. Their brief to the Supreme Court questioned the sudden “non-credible” affidavits of the three experts who changed their minds.
“These experts had the same information in 2000 as they have today,” Deputy Attorney General Beth Burton argued in her brief to the Supreme Court. They examined Hill then; they did not re-examine him before switching sides.
However, the judge who dissented from the 11th Circuit Court of Appeals decision allowing the death sentence to stand took the opposite view.
“The state of Georgia will execute a mentally retarded man when it carries out the execution of Warren Lee Hill,” Judge Rosemary Barkett wrote. “A congressional act cannot be applied to trump Hill’s constitutional right not to be executed.”.
That was the argument presented by Kammer, executive director of the Georgia Resource Center, a non-profit law firm that provides free representation to indigent prisoners facing death sentences.
“This court is Mr. Hill’s last resort,” Kammer’s brief stated, because the federal district court, federal appeals court, state habeas court, Georgia Supreme Court and Georgia Board of Pardons and Paroles all denied his applications. “In this case, there is no ‘fail safe’ available to prevent a miscarriage of justice.”.