The National Law Journal posts, "Warren Lee Hill's — and the Supreme Court's—Last Chance." It's written by Stephen I. Vladeck and James Liebman. Vladeck is at the American University Washington College of Law; Liebman is at Columbia University. They co-authored an amicus brief filed with the U.S. Supreme Court on behalf of a group of law professors.
Here's the beginning of this must-read:
In its 1996 decision in Felker v. Turpin, the U.S. Supreme Court saved Congress from itself, relying on creative legal reasoning to hold that some of the key provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) did not actually raise the serious constitutional questions that they appeared to present. As Felker held, although Congress had meant to foreclose state and federal prisoners from filing most “second-or-successive” habeas petitions (including in some cases in which they had an indisputable claim for relief), that constraint only applied to the lower courts. Appearances to the contrary notwithstanding, Felker held, Congress had left intact the Supreme Court’s ancient authority to entertain “original” habeas applications in such cases, i.e., habeas petitions filed initially in the Supreme Court, a practice blessed by Chief Justice John Marshall as early as 1807. Because review of a prisoner’s constitutional claims remained available in at least one judicial forum, Felker ruled, the AEDPA did not implicate either the prisoner’s constitutional right to judicial review or the role of the federal courts as the ultimate arbiters of the Constitution.
As should be clear, Felker’s reasoning works only if the Supreme Court actually exercises its original habeas jurisdiction in appropriate cases. Otherwise, there will be cases in which there is no judicial forum available in which to adjudicate the legality of the state’s taking of liberty and life—the very condition that Felker held to be constitutionally intolerable.
According to the Supreme Court’s rules, its exercise of original jurisdiction requires “exceptional circumstances warrant[ing] the exercise of the Court’s discretionary powers, and…[a showing that] adequate relief cannot be obtained in any other form or from any other court.” If Felker means what it says, then the Supreme Court must grant such relief in the pending case of Warren Lee Hill, Jr.—a Georgia inmate whose execution is currently scheduled for next Monday evening, July 15, and whose case is the rare one that clearly satisfies both prongs of the Supreme Court’s requirements for such relief.
"Coalition of disability advocates fights to end Georgia death penalty," is by Nia Testamark for Morris News Service. It's via Georgia's Rome News-Tribune.
Georgia was the first state to outlaw the death penalty for people with mental retardation; however, the defendant must prove it beyond reasonable doubt, the only state to require such a high standard of proof.
Georgia law requires a series of three tests -- an intelligent-quotient test, adaptive-behavior test and a test during childhood.
There are many activists against Georgia’s “beyond reasonable doubt” requirement. They want to change the law to preponderance of the evidence, which means that it will be based on evidence that suggest retardation instead of tests and more easily proved.
Advocates are working at the legislature with state Rep. Rich Golick, R-Smyrna, who chairs the Non-Civil Judiciary committee, who will have a study session this fall to look at this issue.
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 on the website.