Today's New York Times carries the editorial, "An Intolerable Burden of Proof."
The Supreme Court ruled in 2002 that it is unconstitutional to execute mentally retarded criminals, finding that the death penalty cannot be justified for these offenders because they are morally less culpable.
The court left it to the states to determine how to apply that constitutional restriction. Georgia has chosen to undermine the court’s principled ruling. It is the only state to require that offenders prove they are mentally retarded beyond a reasonable doubt, a procedural threshold that is extremely difficult to reach. In a 7-to-4 ruling last week, the United States Court of Appeals for the 11th Circuit unwisely upheld this Georgia standard. The Supreme Court should review that decision and strike down this intolerable burden of proof.
The Supreme Court’s 2002 ruling applies to people whose intellectual functioning is subaverage (mainly with an I.Q. of 70 or below), who are limited in communicating, caring for themselves and other adaptive skills and who show these traits before they are 18. In the Georgia case of Warren Lee Hill Jr., Mr. Hill’s I.Q. of 77 was found to meet the threshold, but he was unable to prove beyond a reasonable doubt that his adaptive skills were impaired.
Judgments about mental impairment are necessarily based on subjective interpretations of behavior. The Supreme Court has noted how hard it is to prove this kind of mental condition beyond a reasonable doubt. Proof turns on expert testimony, and an effective opposing expert can raise doubt. That is why, of the 33 other states with the death penalty, 28 use a lower standard of proof for mental retardation.
The 11th Circuit Court of Appeals ruling in Hill v. Humphrey was issued on November 22. It's available in Adobe .pdf format.
The AP reported, "11th Circuit upholds strict Ga. execution standard," written by Greg Bluestein. Here's an extended excerpt:
Death penalty defendants in Georgia will have to prove they are mentally disabled beyond a reasonable doubt to avoid execution, the most stringent legal standard in the nation, a federal appeals court ruled Tuesday.
The 11th U.S. Circuit Court of Appeals decision said it couldn't strike down the Georgia law "even if we believe it incorrect or unwise" because the Supreme Court empowered each state to create its own definition for the mentally disabled. Most death penalty states have a lower threshold for defendants to prove they are mentally disabled, while six states don't set any.
The ruling comes as a disappointment for defense attorneys, who plan to appeal, and over the objections of four circuit judges. One of them, U.S. Circuit Judge Rosemary Barkett, wrote in a dissent that the law "eviscerates" the constitutional rights of mentally disabled offenders.
The case was brought by Warren Lee Hill Jr., who was sentenced to death for the 1991 murder of a fellow inmate. Hill's IQ tests indicated that he may meet the medical definition of mild mental retardation, but a county judge found he didn't meet the other criteria required in Georgia to meet the standard.
His case eventually landed before the Georgia Supreme Court, which narrowly voted to uphold the law. The standard was struck down by a divided 11th Circuit panel last year, but the full court pulled an about-face on Tuesday after hearing oral arguments in February.
The decision, written by Judge Frank Hull, said when the U.S. Supreme Court outlawed the execution of mentally disabled offenders in 2002, the justices were careful not to set rigid guidelines for who meets that definition. Instead, the court empowered each state to develop "appropriate" standards for determining who was actually mentally disabled.
Even if Georgia "somehow inappropriately struck the balance" when it adopted its standard, Hull wrote, only the U.S. Supreme Court can overturn the state's law. And so far, she noted, the high court hasn't weighed in.
"We do not decide whether Georgia's burden of proof is constitutionally permissible, but only that no decision of the United States Supreme Court clearly establishes that it is unconstitutional," Hull wrote.
Hill's defense attorney, Brian Kammer, said he would "absolutely" appeal the decision to the Supreme Court.
The opinion was met with a flurry of dissents. Circuit Judge Beverly Martin said the state law runs counter to the "Supreme Court's longstanding recognition that death is different." And Circuit Judge Charles Wilson argued the majority asked the wrong question and reached the wrong answer.
Tennessee attorney Lee Davis writes, "Georgia's Requirement of Proof of Mental Retardation Beyond A Reasonable Doubt Constitutional," for the Chattanoogan.
On Nov. 22, the Eleventh Circuit held that Georgia’s requirement that criminal defendants prove their mental retardation beyond a reasonable doubt constitutional in Hill v. Humphrey.
Georgia was the first state to enact a prohibition against the execution of the mentally retarded. Years later, and after a national consensus adopting this policy was formed, the United States Supreme Court held in Atkins v. Virginia that imposing the death penalty on the mentally retarded is unconstitutional in violation of the 8th amendment.
In Hill, the sole question before the en banc Court was “whether the Georgia Supreme Court’s decision in Hill III—holding that Georgia’s reasonable doubt standard does not violate the Eighth Amendment— is contrary to clearly established federal law, as announced in Atkins.” As noted above, the Eleventh Circuit held that it was not.Atkins appears to be straightforward—the government can’t execute the mentally retarded. However, the Supreme Court did not provide guidelines for how to determine who is mentally retarded nor did it address how to allocate the burden of proving mental retardation. The Eleventh Circuit in Hill relied primarily on the fact that the Supreme Court left these decisions to the states.
Earlier coverage of mental retardation issues in Georgia begins at the link.
More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.
As I often point out, 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. Related posts are in the mental retardation index.
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