"Executing the Mentally Handicapped - Is Illegal - Except When it Isn't," is Andrew Cohen's latest post at the Atlantic.
It rarely registers as news anymore when a federal appeals court denies a request for relief made by a death row inmate. It happens all the time, every week, in every jurisdiction that still recognizes capital punishment as a sentencing option. But there is nothing typical about what two federal judges of the 11th U.S. Circuit Court of Appeals did Monday in denying relief to Warren Lee Hill, a mentally ill capital defendant in Georgia who came within hours of being executed earlier this year.
By a vote of 2-1, over a sharp dissent, the 11th Circuit panel refused to allow Hill's attorneys to pursue their claim that Hill is mentally retarded* beyond a reasonable doubt and thus cannot be put to death under both Georgia law and the United States Supreme Court's ruling in Atkins v. Virginia (a 2002 decision which declared such executions to be a form of "cruel and unusual" punishment under the Eighth Amendment). Here is the link to the 11th Circuit ruling. The Atlantic's previous coverage of this case is found in the "More On" box on the right.
What makes this result so extraordinary -- and so unnerving to many who follow capital cases -- is the rationale employed by the court in turning down Hill's request. The 11th Circuit employed an argument that turns on its head the very essence of judicial review. Yes, there was relevant new evidence that Hill is mentally retarded, the judges acknowledged, but that new evidence didn't create a new "claim." And since there was no new "claim," they concluded, Congress precluded them from allowing Hill's evidence to be evaluated on its merits.**
"Court Lifts Execution Stay; State Out of Lethal-Injection Drugs," is Bill Rankin's updated Atlanta Journal-Constitution report.
The court’s decision means the state can set a new execution date for Hill at any time. But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.
“At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan wrote in an email.
Hill’s case attracted international attention when three state experts who previously testified Hill was faking his mental disability came forward to say they had been mistaken. The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.
In 1988, Georgia became the first state to ban executions of the mentally retarded. The U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.
In a strong dissent, Judge Rosemary Barkett said there is now “no question” that Georgia will be executing a mentally retarded man. She noted that the seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.
“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,” she wrote.
The expanded AP report is, "Appeals court lifts stay of execution for Ga. man," by Kate Brumback. It's via NECN.
Like many death penalty cases, Hill's has had a long and complicated journey through the legal system, including two last-minute stays of execution.
The 11th Circuit panel granted a stay in February after Hill's lawyers argued he was eligible for reconsideration in federal court because three doctors who had testified in 2000 that Hill was not mentally disabled provided statements in February saying they had changed their opinions and now believe he is.
Georgia passed a law in 1988 prohibiting the execution of mentally disabled death row inmates, and the U.S. Supreme Court ruled in 2002 that the execution of mentally disabled offenders was unconstitutional. But Georgia also has the strictest-in-the-nation standard for death-row inmates seeking to avoid execution, requiring them to prove their mental disability beyond a reasonable doubt. The state of Georgia has long argued that Hill's lawyers have failed to do that.
In filings with the 11th Circuit, the state said the doctors' new statements were not credible and also argued Hill was procedurally barred from asking a federal court to reconsider his case.
In the majority opinion, Circuit Judge Frank Hull writes that the court recognizes Hill has submitted new evidence to support his claims but says the core argument — that Hill is mentally disabled and therefore shouldn't be executed — remain the same. The 11th Circuit and other courts have repeatedly held that new evidence and new legal arguments in support of a prior claim aren't enough to overcome the statutory bar on repeat petitions.
"If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony," Hull writes.
Hill's claim also doesn't meet exceptions to the requirements that would allow reconsideration by a federal court, Hull writes.
Earlier coverage of Warren Hill's case begins at the link.Mental retardation is now generally referred to as a developmental or intellectual disability. Because it has a specific meaning with respect to capital cases, I continue to use the older term.