Monday, July 8, 2013

Why is Warren Lee Hill even being considered for the death penalty?

Posted By on Mon, Jul 8, 2013 at 12:27 PM

Warren Hill killed someone and was sentenced to life in prison. While there, he killed someone else and was sentenced to death. Warren Hill is mentally retarded*. These are facts and they are undisputed.

The U.S. Supreme Court decided in 2002 that the Eighth Amendment of the Constitution prevented the execution of the mentally retarded.

So why is Warren Hill, who's scheduled to be executed on July 15, being put to death?

Georgia, even before the Supreme Court made its pronouncement in 2002, enacted a rule that exempted only those who could prove "beyond a reasonable doubt" that they were mentally retarded from the death sentence. No other state requires such a high level of proof.

But measuring intellectual ability isn't like measuring height. And when an IQ score of 69 (mentally retarded) means life in prison and 70 (borderline) means the death penalty and some experts say mentally retarded and some say borderline, a judge will not find that the super-high standard of "beyond a reasonable doubt" has been met.

And so it was the first time that Hill asked for post-conviction relief (in the form of a habeus corpus** petition) from his death sentence.

After Hill's attempt to avoid the death penalty failed, the state's experts whom the judge relied on in finding Hill to be slightly too smart took a second look at their data. They determined they were mistaken. Hill was, in fact, mentally retarded and not borderline. Seventy became 69 and all that would be required to change "death" to "life" was another habeus hearing to convince the judge.

But Hill doesn't have a right to another habeus hearing. The AEDPA*** prevents cumulative habeus requests. So Warren Hill has to go to the Supreme Court to argue that the changed opinions of the experts amount to new evidence and with the bizarrely worded argument that he is "actually innocent of the death penalty." An "actually innocent" claim can get you past the heavy restrictions that the AEDPA places on successive habeus petitions.

And so now the Supreme Court can decide if, when they stated that the execution of the mentally retarded was forbidden, they actually meant it. The justices have yet to decide whether they'll hear Hill's case. They have one week to make up their minds.
* Note about the language used in this piece: "Mentally retarded" is the term used by the courts in the determination of intellectual capacity in this context. If it upsets you, I suggest you not read U.S. Supreme Court Justice Antonin Scalia's dissent in the seminal case on the Eighth Amendment's treatment of the mentally deficient. In it, he spends many paragraphs on the 18th Century classifications of "idiot" and "imbecile."

**habeus corpus, which means "produce the body" or thereabouts, dates from the early 13th century, a writ under common law. It is used chiefly in the United States to challenge an improper conviction by appealing to a different court to challenge the original decision.

***The Anti-Terrorism and Effective Death Penalty Act, or AEDPA, severely curtailed the application of the writ of habeus corpus by limiting both the amount of time you had to request it and the grounds for overturning a conviction.

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