Warren Hill in Georgia

"The Warren Hill Execution: A Late Challenge Over Lethal-Injection Drug," is the title of Andrew Cohen's latest post at the Atlantic.  Here's the beginning:

For years now there have been serious constitutional questions about Georgia's plan to execute Warren Lee Hill, a man whom all government doctors now agree is "mentally retarded."* As a matter of fact and law, such an execution is supposed by be barred by the Supreme Court's precedent in Atkins v. Virginia, a 2002 case in which the justices, by a vote of 6-3, declared that the Eighth Amendment's prohibition against "cruel and unusual" punishment precludes the execution of people whose cognitive impairment renders them unsuitable for the criminal justice system's ultimate punishment.

But as Hill's execution grows near -- barring relief from the United States Supreme Court he is scheduled to be put to death tonight at 7 p.m. EDT-- his lawyers have posed a separate, new constitutional question. In an series of emergency papers filed in state court late Friday, Hill's attorneys allege that a brand new Georgia statute, candidly called the Lethal Injection Secrecy Act, violates Hill's constitutional rights under both federal and state law because it purposely shields from judicial review the manner by which the drugs to be used in his execution were manufactured and obtained.

The argument made by Hill's lawyers Friday is as simple as the story of Georgia's quest for lethal injection drugs is complicated. For reasons that are now fairly well-known, the state has had trouble finding the drug -- Pentobarbital -- that is required to complete the execution. This is so because the U.S. manufacturer of the drug ceased to produce it in 2011 after European manufacturers embargoed its importation here (because of their objections to its use in American executions). As "official" supplies of the drug have dwindled, state officials have resorted to dramatic means -- including possibly unlawful means --  to obtain it. The Guardian's Ed Pilkington has done a great job of covering this aspect of the story.

"Save mentally retarded inmate from execution," is the USA Today OpEd by Lindsay C. Harrison, a partner at Jenner & Block.

In Hill's case, this means that even though the state's experts have stated categorically and under oath that their prior testimony was wrong, the courts feel powerless to correct the injustice resulting from that testimony. As Judge Rosemary Barkett put it, this leads to the "perverse consequence" that "a federal court must acquiesce to, even condone, a state's insistence on carrying out the unconstitutional execution of a mentally retarded person."

Because of the act, Hill has only one option left to vindicate his constitutional rights – an "original" habeas petition filed in the Supreme Court. While most cases reach the Supreme Court on appeal after having been heard in the lower courts, an "original" petition is filed for the first time in the Supreme Court. Such petitions date back to the early 19th century, yet are rarely granted anymore. That should change, at least in cases such as Hill's.

Per court rules, an original petition should be granted where "exceptional circumstances warrant the exercise of the court's discretionary powers" and "adequate relief cannot be obtained in any other form or from any other court." Given unanimous opinion that he is mentally retarded and thus ineligible for execution, Hill's case presents such "exceptional circumstances."

With just hours before he is set to be put to death, only the Supreme Court can act to stop it. If it does not, Georgia will execute a man whose execution the Constitution forbids.

Lincoln Caplan writes, "The Withered Writ," for the American Prospect.

Since AEDPA became law, most of the federal courts that have interpreted the statute have said it obliged them to defer to state court rulings. The statute has largely kept federal courts from reaching the merits in countless cases where lawyers made compelling arguments that the prisoner deserved to win under the Constitution; the statute has largely eliminated the federal writ of habeas corpus for state prisoners. In too many AEDPA cases, federal courts have allowed inmates on death row to be executed in models of unfairness.

There now exists an illogical chasm between law and justice—between, on the one hand, the statute’s reflexive antagonism to challenges to the death penalty and, on the other hand, much of the country’s reckoning with the failure of states to administer capital punishment constitutionally.

AEDPA and the Supreme Court all but hide this chasm—and the injustice it regularly leads to—behind byzantine rules and rulings, making it exceedingly hard for our legal system to keep the Constitution’s promise that habeas will be available to prevent the most serious deprivations of liberty. Rather than a grand means to break an evil spell, AEDPA is the opposite.

Counterpunch posts, "Protecting Those Who Can't Protect Themselves," by Dr. Cesar Chelala.

The planned execution on July 15, 2013, of Georgia prisoner Warren Hill –who has been diagnosed as ‘mentally disabled’- is a gross violation of U.S. federal laws and specifically of the 8th amendment that reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ The U.S. Supreme Court has ruled that criminal sentences that are inhuman, outrageous, or shocking to the social conscience are cruel and unusual.

"Georgia inmate is scheduled to be executed," is the AP report, via the Macon Telegraph.

A prisoner who has twice come within hours of death on Georgia's death row is once again facing execution.

Warren Lee Hill, who was sentenced to death for the 1990 beating death of fellow inmate Joseph Handspike, is scheduled to be executed at the state prison in Jackson at 7 p.m. Monday.

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.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.